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Discrimination or accommodation?

The article discusses how an employer had been requiring job candidates to answer probing personal health-related questions saying that the intention was to identify candidates who might need workplace accommodation. But was it discrimination or accommodation?

Discrimination or accommodationJust when we thought this had been settled, a recent news story regarding Laval University serves as a reminder that some need constant reminding of appropriate employer conduct.

A recent news article by CP journalist Magdaline Boutros reported that since 2009 Laval University has been requiring job candidates to complete a questionnaire probing for personal health-related information. The shocking questionnaire purportedly probed family and personal medical history, including questions regarding menstrual cycles and previous abortions. Spokespersons for Laval University responded that the questionnaire is no longer being used (since the media got hold of it) but that its intention was to identify those candidates who might require workplace accommodation. What is clear is that asking such questions clearly violates Quebec’s Charter of Human Rights and Freedoms, as would similar behaviour by employers in all other provinces.

Although the university is correct in acknowledging it has a duty to accommodate an employee in the workplace on the basis of a protected ground, an employer should not presume or assume the need for it, and to do so may be discriminatory, or seen to be discriminatory, even if that was not the intent. Employees needing such accommodation will request it of the employer.

Accessibility legislation in Ontario requires employers to communicate with employees and the public about the availability of accommodation for job applicants with disabilities in both the recruitment process and when making job offers. There is no duty to pro-actively identify an employee’s or candidate’s disability.

Human rights legislation and policy typically restricts the information that may be shown in a job advertisement and that may be requested on job application forms or in interviews. Generally speaking, employers are not permitted to advertise or request information that is related to a “protected ground” of discrimination, such as sex, race, religion, etc., prior to making a job offer, unless specific and limited exemptions apply. Employers are also discouraged from requesting photos from candidates. Where possible, it is recommended to use hiring teams representing the diversity of the workplace, rather than single individuals.

Some employers may be tempted to collect such information because of assumed increased benefit costs which might result from hiring employees who may be deemed to be “higher risk” of health problems, or have higher costs resulting from benefit coverage for dependents or family leaves. Admittedly some personal information is required to enroll employees with benefit carriers, however, such personal information should only be collected after a person is hired, not on an application, and even then, only the minimum information necessary should be collected.

I almost didn’t write about this because it seemed too obvious and egregious a violation of what we all know about hiring and human rights. My reaction to the report was an eye roll and a “really, you’ve got to be kidding?” But it is the shockingly discriminatory content of the questionnaire, used for almost 8 years, without complaint, and the employer’s “explanation” which serves as a reminder to all of us that bias and discrimination can easily slip into employment processes and relationships, without ongoing vigilance.

Non-discriminatory workplaces do not happen by accident—they are actively created in policy and procedure.

Michele Glassford

President and Managing Editor at DRH and Lawyer at MacKinnon Law Associates
Michele Glassford, is a lawyer, researcher and policy analyst with a background in employment and labour law.In addition to a part-time law practice in Stoney Creek, Ontario, Michele has worked in the field of labour adjustment for the Health Sector Training and Adjustment Program and has been a Researcher for the Canadian Broadcasting Corporation. Michele also holds the position of President and Managing Editor at D.R. Hancocks & Associates Inc., author of the Human Resources PolicyPros. Read more

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