November 5, 2019 By Brian Grootendorst, Daniel Sorensen and Lawrence Smith
Two related topics that have come up recently are “what sort of questions can I ask, or should I avoid when interviewing a new employee?” and “what sort of background searches can I conduct on prospective employees?”
To answer these questions, we must keep in mind the British Columbia Human Rights Code, RSBC 1996 c 210 (the Code). According to section 13 of the Code an employer must not refuse to employ, or discriminate against a person regarding employment, because of that person’s:
- Place of origin
- Political belief
- Marital status
- Family status
- Physical or mental disability
- Sexual orientation, gender identity or expression
- Age, or
- Because that person has been convicted of a criminal or summary conviction offence that is unrelated to the employment or to the intended employment of that person.
Accordingly, when an employer is conducting an interview of a prospective employee, they should keep in mind the above grounds for potential discrimination when preparing their questions. For example, the title question of this post is “Would you consider yourself to be a Family Person?” This question would be a problematic question to ask an employee during an interview. Consider that if the employee answers no I am not a family person and is not hired, this employee may likely understand (maybe correctly) that he/she was not hired because of his/her family status and/or marital status. This would give him/her grounds to make a human rights complaint.
This is obviously a simplified example, but it is important for an employer to consider their questions and the potential answers in an interview. One way to avoid the above is to ask more open-ended questions such as the always original “tell me a bit about yourself.”
In response to the second question above regarding background checks, the Code and grounds of discrimination above must also be kept in mind. Background checks such as reference checks, professional qualification checks, education checks, and reasonable social media background checks are all permissible, and indeed likely should be conducted prior to hiring an employee. Keep in mind, however, that the questions an employer asks during these background checks should again comply with the advice above and avoid demonstrating any bias or discrimination.
What about checking a potential employee’s driving history, their credit, or even having them provide a criminal background check prior to employment? When contemplating requiring or performing these checks it is useful to refer to what is called a bona fide occupational requirement. The legal test to determine a bona fide occupational requirement is where:
- The Employer adopted the requirement for a purpose rationally connected to the performance of the job.
- The Employer adopted the requirement in an honest and good faith belief that it was necessary to fulfill a legitimate work-related purpose.
- The requirement is reasonably necessary to fulfill its purpose.
Accordingly, it would be reasonable for an employer to request and require a driving record check for an employee who is required to drive as part of his/her employment, or a credit check for an employee who will be responsible for dealing with large sums of money.
Employers should be cautious with requesting or requiring criminal record checks as the Code specifically prohibits refusing to employ a person because of a criminal conviction that is unrelated to the current proposed employment. As stated above criminal record checks can be required by employers where they are a bona fide occupational requirement.
This creates a sort of scale of reasonableness. If the employee’s responsibilities include caring for the young or elderly, or handling large amounts of money, a requirement that the employee consent to a Criminal Record Check prior to employment is likely highly reasonable. On the other end of the scale, if an employee is being hired as a general labourer it is likely unreasonable to require a Criminal Record Check.
Finally, when looking to conduct background checks employers have to be cognizant of provincial and federal privacy laws that govern the collection and disclosure of personal information. For example, according to the Personal Information Protection Act (PIPA) an employee must give consent for the collection of their personal information. However, PIPA also states that the collection of employee personal information may be collected without consent where the collection is reasonable for the purposes of establishing an employment relationship and providing that the employee is notified prior to collection. Another exception to the consent requirement is where personal information is available to the public. A social media background check would likely fall under this exception (providing that the potential employee’s various social media profiles are public.)
To be safe it is best practice that the employer ensures that a potential employee consents to any background checks the employer intends to conduct.
If you ever have questions about whether or not your interview questions are appropriate, if you should or should not be conducting a certain background check, or in the worst-case scenario you are facing a Human Rights Complaint, please contact us!