I did a post last month asking whether Starbucks is violating the Human Rights Code by asking in their job application forms what high school the applicant went to, and whether the applicant can work overtime. I received a series of emails about this, as well as few comments on the blog. So I thought I’d revisit the conversation to make my point clearer.
The relevant section of the Code is 23(2). It says this:
The right under section 5 to equal treatment with respect to employment is infringed where a form of application for employment is used or a written or oral inquiry is made of an applicant that directly or indirectly classifies or indicates qualifications by a prohibited ground of discrimination.
I said that this section means that an employer cannot ask questions in an application form that “indirectly” would cause an applicant to disclose that they fall within a class of person that is protected from discrimination in employment. No one seems to have a problem with my conclusions in other posts that it is unlawful to ask in an application form whether someone can stand for 8 hours and lift heavy weights. Why is it a violation of s. 23(2) to ask if someone can do those things? Because a disabled person would have to answer no and would therefore be weeded out of the competition before any discussion takes place about accommodation. That is what s. 23(2) says.
However, people take exception to the claim that s. 23(2) prevents questions about the ability to work overtime, and about the name of the high school. Asking if someone can work overtime would tend to disqualify people who are less flexible in their hours do to their “family status” or even disability. The Human Rights Commission says in its Guide to Hiring that you can’t ask for the name and address of a high school, because it would tend to disclose either religion (“I went to St. Michael’s High School”) or place of origin (“I went to high school in Nigeria”). Many readers strongly disagree.
Their argument is that, if that is what s. 23(2) means, then all sorts of normal questions are prohibited. For example, one reader wrote that a person’s address might disclose their religion (if they live in an area dominated by a particular religion) or, if their address is in another country, their place of origin or ethnicity. A person’s name can similarly disclose a lot about a person’s religion, sex, or ethnicity, as does asking about former employer’s (as Dennis says, “I worked for the Catholoc Archdiocese of Lagos”). Does s. 23(2) means employers can’t ask for an applicant’s name, former employers, and home address?
This is all true. So what then does s. 23(2) mean?
The point I am trying to make to my budding law students is that sometimes statutory language doesn’t give you a straight answer.
Assume we agree that s. 23(2) prohibits an employer from asking whether someone can stand for 8 hours and lift 30 pounds repeatedly (because it would disqualify disabled workers). Now assume we agree also that s. 23(2) does NOT prohibit an employer from asking: (1) an employee’s name and address; (2) if an applicant can work 50 hours per week; and (3) whether the applicant attended St. Michael’s High School or the Toronto Hebrew Academy.
What is the distinction that makes the first scenario a breach of s. 23(2), but not the latter three? All four questions could indirectly classify the applicants according to a designated group. There is no obvious answer to that question. Perhaps, as some writers expressed to me, that the answer is that the Tribunal should focus not on the question itself, but on what the employer ‘does with the information’ it acquires. But that’s problematic, because the whole point of s. 23(2) is to prevent employers from soliciting the information in the first place. Section 5 already prevents an employer from refusing employment to someone based on a designated ground, so if employers can ask questions that solicit information about whether an applicant is within a designated ground, as long as they don’t rely on the information to deny employment, then s. 23(2) is meaningless. Clearly, s. 23(2) is intended to add something new to the Code that is not already covered by the general prohibition against discrimination in employment found in s. 5. Its purpose is to stop employer’s from acquiring information, not from acting on that information.
So, how does an employer and the Tribunal decide what questions violate section 23(2) and which don’t?