The following types of information should only be requested if they are bona fide requirements because of the nature of the job. Due to the sensitive nature of this information, only request it after making an offer (preferably in writing) of employment:
- driver's licence (may reveal disability, age, sex and gender identity)
- birth certificate (may reveal age, sex and gender identity)
- work authorization issued by Immigration Canada (contains information on date of arrival in Canada)
- educational or professional credentials (may reveal information on place of origin)
- Social Insurance Number (may contain information on date of arrival in Canada and residency status)
- information about health or age necessary for pension, disability, superannuation, life insurance and benefit plans [may reveal disability, age, sex (pregnancy) or gender identity]
- police record checks (may reveal information about a person’s mental health)
- psychological testing, if legitimately required for assessing ability to do the job
- next-of-kin or person to be notified in case of emergency (may reveal family status, marital status, sexual orientation)
- insurance beneficiary (may reveal family status, marital status, sexual orientation)
- accommodation needs.
Keep any such information confidential.
a) Accommodation in terms of physical demands and other essential duties
Once a conditional offer of employment is made, a person can be asked to review the essential duties of the job and tell you if they need accommodation to perform the essential job duties. The employee does not have to disclose disability-related or other needs or medical information that do not relate to the essential duties of the job.
Employees should not be singled out for questioning based on their appearance – instead, ask all employees the same questions about accommodation. Link the request for information to the employer’s accommodation policy, and indicate that accommodation requests may be related to one or more Code grounds. Clearly advise employees why this information is being collected – such as to help you accommodate any identified Code-related needs to the point of undue hardship.
Example: An employer has a form that it asks its employees to fill out after being hired. On this form, it asks, “Do you consider yourself to be disadvantaged in employment by reason of any persistent physical, mental, psychiatric, sensory or learning impairment?” While it is not inappropriate to ask for this kind of information after hiring, the question itself is hard to understand, the words used seem negative and it is not clear why such a question is being asked, as there is no mention of accommodation. The end result is that employees who do have disabilities tend to answer “no” to this question, and start their jobs without appropriate accommodation.
Some employees may need accommodation to meet the job’s essential physical demands. The employer is entitled to expect that, with accommodation, an employee will be able to do the essential job duties, as long as these duties are bona fide. Employers sometimes use physical demands analyses to assess an employee’s ability to perform the physical requirements of the job. These should, however, be used with care since they are often developed with an able-bodied person in mind. Analyses should be designed or re-designed so that they are not exclusionary, and accommodation should be built into the analyses themselves.
b) Medical tests
In the past, employers often screened out applicants with disabilities based on medical information on application forms, or from pre-employment medical exams. The Commission takes the position that requiring such information as part of the application screening process violates subsection 23(2) of the Code.
Medical assessments to verify or determine a person’s ability to perform essential job duties should only take place after a conditional offer of employment is made, preferably in writing. This allows an applicant with a disability the right to be considered exclusively on her or his merits during the selection process.
Information on medical tests may have an adverse impact on people with disabilities. Therefore, employers should only get information from medical testing on the applicant’s ability to perform the essential job duties and any restrictions that may limit this ability. The applicant must give the employer enough information to help them provide accommodation.
The employer may be placed in a vulnerable position if he or she directly receives any information about an applicant’s medical condition. This information leaves open the possibility for an allegation to be made that later decisions made by the employer, such as to hire someone else, or to discipline or terminate the employee, were based on that information.
Therefore, it is the view of the Commission that to protect the employer from allegations of discrimination, as well as the applicant or employee from discriminatory practices, medical information should remain with the physician and away from an employee's personnel file. When needed by the employer, the employee’s physician can share relevant information (for example, restrictions in the ability to perform essential duties), while excluding information that may identify a disability.
Some companies make sure that such information is kept separate from employment decisions by having designated staff, such as nurses, responsible for safeguarding any medical information that may be provided by an employee’s doctor and facilitating accommodation. Requirements under privacy legislation may apply to receiving, storing and disposing of employee medical information. For information on privacy legislation, see Appendix B - “Human rights in the workplace: which laws?”
The following checklist sets out an employer’s obligations when putting medical testing in place:
- Have job applicants been notified of testing before they start the job?
Where medical testing is appropriate, the employer should notify job applicants of this requirement at the time the job offer is made. Make clear to the applicant when and why such testing might be needed.
- Is there an objective basis for testing?
The employer should make sure that the medical testing is needed and appropriate. To decide when testing is needed, employers, where applicable, should consider the following questions, among others:a) Is the testing justified objectively in terms of job performance? Is there a rational connection between testing and job performance?
b) Is there an objective basis to believe that the degree, nature, scope and probability of risk caused by the disability will adversely affect the safety of co-workers or members of the public?
- Have arrangements been made for competent handling of test samples?
Medical testing must be performed by qualified professionals and the results analyzed in a competent laboratory. Also, employers are responsible for making sure the samples taken are properly labelled and protected at all times.
- Have the results of the test been reviewed with the employee?
Procedures should be put in place for the physician to review the test results with the employee concerned.
- Are the test results kept confidential?
To protect the confidentiality of test results, all health assessment information should remain exclusively with the examining physician and away from the employee's personnel file. Such information should be safeguarded in accordance with applicable privacy legislation and practices.
For more information, see the discussion of bona fide occupational requirements in Section IV-2 – “Setting job requirements.”
c) Psychometric and psychological testing
Employers sometimes use tests that assess psychological or personality profiles of job applicants. The use of these and other behaviour profiles as part of a screening process before hiring raises concerns about human rights violations. Such tests should never be administered before a conditional offer of employment, and even then should be approached with caution.
Subsection 23(2) of the Code prohibits the use of an employment application form or a written or oral inquiry that directly or indirectly classifies an applicant on the basis of a prohibited ground of discrimination. This also applies to psychological profiles and testing. The validity of behavioural testing as a tool to predict on-the-job performance may be subject to a complaint under the Code.
There are two major issues with the use of behavioural profiles. The first is whether using such a screening tool directly discriminates based on any of the Code grounds. Direct discrimination could happen if the behavioural profile test directly identifies or classifies an applicant on the basis of a prohibited ground of discrimination. A test, for example, that asks about a person’s religious beliefs is directly discriminatory and is not allowed.
The second issue concerns reasonable and bona fide behaviour profiles that might infringe the Code if they exclude a group of persons who are identified by a prohibited ground – for example, if members of certain ethnic groups are accidentally yet consistently screened out by a test that favours other cultures.
Any test should be a reasonable and bona fide method of assessing an applicant’s ability to do the job. Otherwise it should not be used. Tests should be tailored to actual job duties. Take care to make sure that tests take into account the diverse ways people can successfully perform jobs and that appropriate accommodation is provided. There is an obligation to accommodate the needs of the group the person is a member of to the point of undue hardship, while considering the cost, outside sources of funding and any health and safety requirements.
Avoid testing that seeks to assess personal interests, attitudes and values. If these tests are legitimately needed to assess ability to perform a job, use them with great care to make sure they do not favour certain cultures or genders. Many such tests are outdated and may have been created based on stereotypes or biases relating to Code grounds. Before giving a test to current or potential employees, research how the test has been created and assess whether it is reliable, up-to-date, valid and complies with the Code and any guidelines or practices established by professional organizations such as the Canadian Psychological Association. This will be relevant if a complaint is filed. Even if a test is fair, an employer will need to put in place measures to minimize the impact of unintentional bias on the part of persons scoring candidates’ answers. One option is to have more than one person score each candidate.
d) Pre-employment drug and alcohol testing
It is a legitimate goal for employers to have a safe workplace. One method sometimes used by employers to achieve that goal is drug and alcohol testing. In recent years, human rights issues related to drug and alcohol testing have become increasingly prevalent in Canadian workplaces, especially those affiliated with companies operating in other jurisdictions such as the U.S. However, such testing is controversial and often gives rise to claims of discrimination.
Drug or alcohol dependency as a disability
Under the Code, drug and alcohol dependencies - as well as perceived dependencies - are a form of disability. Persons with disabilities, or persons who have had disabilities, are protected against discrimination in the workplace or in a hiring process.
Example: An employer refuses to promote an employee because of the perception that the employee has an alcohol dependency. Because of this perception and resulting action by the employer, the person's right to equal treatment under the Code may have been infringed.
Example: A person who had a drug or alcohol dependency in the past, but who no longer suffers from an ongoing disability, is still protected by the Code.
i) Basic principles:
Drug and alcohol testing is at first glance discriminatory under Canadian human rights law. Employers can, however, justify discriminatory rules if they can meet the three-part test discussed earlier under Section IV-2 – "Setting job requirements – Make sure that job requirements are reasonable and made in good faith”
Applying the three-part test to drug and alcohol testing, consider the following questions, where applicable:
- Is there an objective basis for believing that job performance would be impaired by drug or alcohol dependency? In other words, is there a rational connection between testing and job performance?
- Is there an objective basis for believing a specific employee’s unscheduled or recurring absences from work, or habitual lateness for work, or inappropriate or erratic behaviour at work are related to alcoholism or drug addiction/dependency? These factors could demonstrate a basis for "for cause" or "post incident" testing provided there is a reasonable basis for drawing these conclusions.
- Is there an objective basis to believe that the degree, nature, scope and probability of risk caused by alcohol or drug abuse or dependency will adversely affect the safety of co-workers or the public?
Drug and alcohol testing that has no proven relationship to job safety and performance has been found to be a violation of employee rights.[41] A relationship or rational connection between drug or alcohol testing and job performance is an important component of any lawful drug or alcohol testing policy. The policy must not be arbitrary in terms of which groups of employees are subject to testing.
Example: An employer operating a shipping company only tests new or returning employees for alcohol but not other employees. This would not be justifiable. At the same time, testing employees in safety sensitive positions only (for example, truck drivers and fork-lift operators) may be justifiable.
ii) Pre-employment testing is a form of medical examination:
Testing for alcohol or drug use is a form of medical examination. In general, employment-related medical examinations or inquiries, conducted as part of the applicant screening process, are prohibited. Alcohol or drug testing is allowed in restricted circumstances on the job. See Section IV-9k) – “On-the-job drug and alcohol testing.” Before employment, such testing must comply with the following principles:
- Pre-employment medical examinations or inquiries at the interview stage should be limited to determining a person’s ability to perform the essential job duties.
- To use a testing program before hiring, the employer must be able to show that pre-employment testing provides an effective assessment of the applicant. It has long been the Commission’s view that employers should not do pre-employment testing that does not actually measure impairment. Recent court decisions state that pre-employment safety-certification drug testing by urinalysis may be acceptable in some cases, as long as accommodation is provided following positive test results. The extent to which pre-employment testing is acceptable is a matter before the courts. Employers should proceed with caution.
- Where drug or alcohol testing is a valid requirement relating to essential job duties, the employer should notify job applicants of the need to undergo this testing when they make an offer of employment. Employers should make clear to applicants the reasons why such medical testing is needed.
- The employer’s drug and alcohol policy should allow for accommodating people who receive positive test results.
- If applicants or employees request accommodation to enable them to perform the essential job duties, the employer must provide individual accommodation unless it is impossible to do so without causing undue hardship.
e) Gender identity-related information
Gender identity is a personal characteristic that may or may not be known to others. While most people are not concerned about others knowing their gender identity, this may not be the case for transsexuals and transgenderists.
An employer or service provider who legitimately requires and collects personal information that either directly or indirectly identifies a person’s sex must ensure the maximum degree of privacy and confidentiality of the information. This is because the designation of sex on documents such as a birth certificate or driver’s licence may be different from a person’s gender identity. This applies in all situations and cases including employment records and files, insurance company records and medical information. The information might be needed to enable an employee or individual to claim or register for benefits or for other purposes.
To protect the person’s privacy, all such information should remain exclusively with designated staff and be locked in a filing system. An employer or service provider who fails to properly safeguard information about a person’s sex or gender identity may be found to have infringed the Code if the employee is subjected to discrimination because of his or her gender identity.
f) Police record checks
Persons with mental illness, or who have had a mental health crisis in their lives, may have been taken to hospital by the police under the authority of Ontario’s Mental Health Act. The records resulting from these non-criminal police contacts may have a lifelong impact when people apply for employment or a volunteer position.
The Commission recognizes that organizations and police forces have a responsibility to protect the public and maintain safety. However, if not conducted and used properly, police background checks can lead to human rights concerns.
Organizations are increasingly asking job applicants and volunteers to consent to police background checks. In some cases, these are necessary to protect people who may be vulnerable, such as for positions that involve working with children, elderly people or persons with certain types of disabilities. In other cases, the checks may not be needed, but rather preferred as an additional screening tool. Either way, the provisions of the Code apply if the check has an adverse impact on persons with mental disabilities who have had prior non-criminal police contact. It is therefore very important for individuals and organizations requesting background checks to understand the human rights implications of this information.
Section 23 indicates that a person’s suitability for a job or a volunteer position should not be based on assumptions related to Code grounds, such as mental illness. A key human rights concern arising from police background checks is that information about contacts related to the Ontario Mental Health Act are stored, including voluntary and involuntary transfers to medical facilities.
Also, sections 11 and 17 of the Code make it clear that even neutral requirements that do not appear to target any individual or group may still have an unintended discriminatory effect. Police background checks may have an adverse impact on racialized persons or persons with mental illness who may disproportionately have encounters with police because of racial profiling or discrimination.
Example: A racialized man is charged with causing a disturbance, even though other White youths engaged in worse behaviour are not. He cannot afford a lawyer, so he pleads guilty without raising his allegations of racial profiling. When he applies for a job that requires a criminal records check, this incident will be flagged and he may be viewed as ineligible for the job.
Because of the potential for an adverse human rights impact, police background checks should only be requested of individuals where it is a reasonable and bona fide requirement because of the job or volunteer position being applied for. While an organization may prefer to have as much information as possible about someone, human rights concerns prevail.
An organization that wants to run a background check must be prepared to justify the need using the test set out by the Supreme Court of Canada for assessing whether a policy, practice or requirement is reasonable and bona fide. See Section IV-2a(i) – “Test for bona fide requirement.” An organization that can show a legitimate need for conducting a background check should only request a check after it has made a decision to offer a candidate the job, conditional on a satisfactory outcome of the background check. In other words, such checks should be the last step in a recruitment process. They should be a final measure to make sure a candidate is suitable. See also the Commission’s Draft Policy on Mental Health Discrimination and Police Record Checks, posted on the Commission’s website for consultation as of February 11, 2008, and any final version that may be later approved by the Commission.
[41] Entrop, supra note 6.