Country of origin is a protected characteristic under human rights legislation, which means employers can’t ask questions about a candidate’s nationality or immigration status during the recruitment process.
Under human rights laws in Canada, employers can’t discriminate against a job candidate based on a protected characteristic — such as race, sex, religion or, most importantly in the case of immigrant candidates, country of origin.
As such, certain questions in the hiring process — on applications and in interviews — are considered discriminatory and can’t be asked.
While human rights laws vary slightly from province to province (and for federally regulated employers), they are very similar when it comes to discrimination in employment.
Generally, you can ask a candidate, on an application or in an interview, if she is legally entitled to work in Canada. However, you cannot ask if she is a Canadian citizen, a permanent resident, has a work permit or ask to see her social insurance number. You also can’t ask about place of birth, refugee status or religion.
Other questions to avoid include inquiries about Canadian experience, mother tongue or the name and location of schools the candidate attended. At this stage, questions about education should be limited to information about the level of education, degree, diploma or professional credentials received.
Conditional Offer of Employment
Once you have made a conditional offer of employment, then you can ask for proof of eligibility to work in Canada, such as a social insurance number or a work permit. This is also when you can ask for copies of diplomas, degrees, certificates or professional credentials.
If the new employee’s social insurance number starts with the number nine, then she has a temporary work permit and you have an obligation to ensure the permit hasn’t expired. For more information, visit the Service Canada website.
At this stage you can also ask your new employee about her religion to determine when a leave of absence may be required for the observance of religious holidays (as required under human rights laws).
There can be exceptions to these general rules if there is a bona fide occupational requirement that the employee be a Canadian citizen.
A bona fide occupational requirement (BFOR) is a standard or rule that is integral to carrying out the functions of a specific position, according to the Canadian Human Rights Commission. For a standard to be considered a BFOR, an employer has to establish that any accommodation or changes to the standard would create an undue hardship.
In Ontario, for example, there are three instances when citizenship is considered a BFOR and questions about citizenship can be asked during the interview process:
- A citizenship requirement is imposed or authorized by law for the particular job.
- A requirement of Canadian citizenship or permanent residence has been adopted to promote participation in cultural, educational, trade union or athletic activities to other citizens or permanent residents.
- Your organization has adopted a requirement that senior executives be Canadian citizens or live in Canada with the intention to get Canadian citizenship.
For more information on exceptions, you will need to review the human rights act that applies to your organization.
- Guide to Screening and Selection in Employment: This guide from the Canadian Human Rights Commission is intended to help federally regulated employers when they interview and hire staff.
- Discrimination in Employment on the Basis of Nationality or Place of Origin: This document for human resources professionals from the Saskatchewan Human Rights Commission explains what you can and can’t ask during the pre-employment and post-employment phase of recruiting.
- Human Rights at Work 2008: IV Human rights issues at all stages in employment: The Ontario Human Rights Commission originally launched Human Rights at Work as a resource for Ontario employers in 2000. The fourth chapter explicitly guides employers at all stages of employment from advertising jobs to discipline, through to retirement and termination.
- Pre-Employment Inquires: This information sheet form the Alberta Human Rights Commission will help employers develop non-discriminatory job advertisements, application forms and interview questions. Also helpful is the Recommended Guide for Pre-Employment Inquiries.
- Pre-Employment Inquiries: You Can Respect Human Rights in Hiring: These guidelines for employers from the Manitoba Human Rights Commission help employers figure out what they can do during the recruitment process and what they can ask job candidates.
- Workplace Rights: A Guide to the PEI Human Rights ACT for Employers and Employees: This guide from the Prince Edward Island Human Rights Commission contains a chapter specifically on interview guidelines.
- Hiring: Applications and Interviews: This guide from Quebec’s human rights commission contains a chapter on what employers can and can’t ask in an interview. (Only available in French.)