Casual Legal: When interviewing, proceed with caution & respect
By Kelsey Becker Brookes
Reynolds Mirth Richards Farmer LLP
Alberta Municipalities Casual Legal Service Provider
The Alberta Human Rights Act (the “AHRA”) prohibits employers from discriminating in the area of employment applications and advertisements and in the making of written or oral inquiries of applicants unless it is for a business purpose that is acceptable under the Act.
Information requested on job application forms and in job interviews must be relevant to an applicant's ability to do a job and must not be used to discriminate against individual or certain groups of people or refuse employment.
Section 8 (1) of the AHRA states:
No person shall use or circulate any form of application for employment or publish any advertisement in connection with employment or prospective employment or make any written or oral inquiry of an applicant:
- a. that expresses either directly or indirectly any limitation, specification or preference indicating discrimination on the basis of the race, religious beliefs, colour, gender, gender identity, gender expression, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, family status or sexual orientation of that person or of any other person, or
- b. that requires an applicant to furnish any information concerning race, religious beliefs, colour, gender, gender identity, gender expression, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, family status or sexual orientation.
Pre-employment inquiries that appear to be discriminatory may be acceptable, if they provide information that the employer truly needs to determine if an employee would be able to perform the job. But employers should carefully consider whether questions that require disclosure of an applicant's gender, gender identity, gender expression, marital or family status, religious beliefs, race, age, sexual orientation or ancestry need to be asked in order to determine if the prospective employee can perform the job. For example, asking an applicant to provide previous names could result in the applicant indirectly disclosing marital status, gender, gender identity, gender expression, place of origin, or ancestry. And a refusal to employ a person on any of these grounds would be contrary to the AHRA.
Employers need to keep in mind the rules around interviewing and appreciate the difference between information needed to determine if the candidate is able to perform the job and information which differentiates candidates based only on protected grounds.
To access Alberta Municipalities Casual Legal Helpline, Alberta Municipalities members can call toll-free to 1-800-661-7673 or send an casuallegal [at] abmunis.ca (email) to reach the municipal legal experts at Reynolds Mirth Richards and Farmer LLP. For more information on the Casual Legal Service, please call 310-MUNI (6864) or send an riskcontrol [at] abmunis.ca (email) to speak to Alberta Municipalities Risk Management staff. Any Regular or Associate member of Alberta Municipalities can access the Casual Legal Service.
DISCLAIMER: This article is meant to provide information only and is not intended to provide legal advice. You should seek the advice of legal counsel to address your specific set of circumstances. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this article to be outdated.