With the big news that Starbucks has just joined Tim Hortons and Second Cup on the York campus, I thought it would be useful to reflect on a post I did two years ago entitled Starbucks and the Discriminatory Application Form.
In that post, I noted that the standard Starbucks application form likely violated Section 23 of the Ontario Human Rights Code because it requests information that employers are not permitted to request in an application form. Section 23(2) says this about job application forms:
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.
That section means, in essence, an employer cannot include questions on an application form that would tend to disclose to the employer that the applicant is a member of a group that is protected under Section 5. In other words, questions that will disclose to an employer: an applicant’s religion, the presence of a physical or mental disability, ethnicity, place of origin, age, marital status, family status, record of offence, or race are unlawful.
In the earlier post, I reviewed the Starbucks application form question by question against this law. A couple of questions raised my eyebrows. What do you think?
What is the name and address of your High School?
Leaving aside that this is completely irrelevant to whether you can make a latte, it is almost certainly an illegal question on a job application form. The Human Rights Commission’s manual on Hiring says so (see p. 7). Can you identify why? Think about whether the location and name of your high school might tend to identify anything about you that could relate to one of those prohibited grounds. What about your university? Do you think there is something about where you go to university that differentiates it from where you go to elementary or high school?
Are you able to work overtime?
The Employment Standards Act defines overtime as more than 44 hours in a week. Starbucks wants to know in its application form if you can work more than that. Do you think Starbucks will prefer applicants who check YES? Now look at the list of designated (protected) groups in Section 5 again. Can you think of how membership in one of those groups might tend to impede your ability to work overtime?
How about “family status”? Section 10 defines that as “the status of being in a parent and child relationship”. There is no doubt that someone who has children may have a harder time working 48 hours per week than a childless person, right? Does that mean that a question asking if someone can work more than 44 hours per week has an adverse effect on applicants with children? If so, then the question on the Starbucks application form is illegal. If not, then what exactly does it mean that an employer cannot include a question that indirectly classifies applicants on the basis that they have children?
Or, how about “disability”? Can you imagine someone with a disability who cannot work more than 8 hours at once? If so, then does a question asking if applicants can work more than 8 hours, or more than 44 hours in a week, tend to disadvantage or disqualify such a person?
What do you think? Is this question about overtime legal or illegal?
If a question about the ability to work overtime is not indirect discrimination, then why is that?
If anyone has a York Starbuck’s application form, or other job application form that you would like discussed on the blog, send it along to me.
