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Hiring How-To: Avoiding Charges of Discrimination

Think before you ask. The most basic questions that may seem logical can open you up to a lawsuit.

Posted by Dawn Lomer on July 4th, 2011

When interviewing job candidates, don’t let common sense get in the way. Of course you need to know whether a candidate can do the job, but some of the most basic questions that common sense dictates you should ask may be ill-advised and you could open yourself up to charges of discrimination.

“Understand the nature of the job you’re hiring for and what the real qualifications of the job are, and don’t ask for any more information than you need,” advises Ottawa employment lawyer Stephen Bird.

What Not to Ask

Asking questions that directly or indirectly solicit information about a candidate’s age, disability, religion, race, colour, gender, marital status, etc, can be interpreted as intent to discriminate. Frame your questions in a way that gives you only the information you need to evaluate the candidate.

Don’t ask how old a candidate is. Even if you think that a candidate’s age may have some relationship to their ability to do the job, this question will open you up to accusations of age discrimination if the candidate doesn’t get the job. If the job requires, by law, that the person be above a certain age (to serve alcohol, for example) you may ask if the person is above the required age.

Don’t ask about a person’s country of origin. Instead you should ask if the person is legally entitled to work in the country, as that is the only legitimate reason you would need to know this information.

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Don’t ask about a person’s physical capabilities or for disability or health information. “The ability to attend work on a regular basis is a legitimate job requirement. So there is some protection for the employer,” says Bird. But he advises employers to tread carefully.

The best way to protect yourself from discrimination charges, says Bird, is to ensure the person doing the hiring in your organization has some sensitivity training.

“The human rights code is absolutely necessary,” he says. “But there are tribunals who don’t let common sense or the law get in their way.”

Dawn Lomer
Dawn Lomer

Manager of Communications

Dawn Lomer is the Manager of Communications at i-Sight Software and a Certified Fraud Examiner (CFE). She writes about topics related to workplace investigations, ethics and compliance, data security and e-discovery, and hosts i-Sight webinars.

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