A recent interview a Realtor conducted with a candidate left us speechless. Without naming and shaming, I really think reviewing what was asked and why it is considered inappropriate is essential as a lesson for all of us. In a previous post, we talked about questions that you shouldn’t pose to a candidate. Not from a legal perspective, but more from the point of view of finding the right candidate for the role you are trying to fill. In this post, we’re going to address the legality of questions asked.
Here are just some of the inappropriate questions asked by different Realtors to different candidates that we interviewed in the past year.
- How old are you?
- What does your husband do for a living?
- You’re newly married… When are you planning on having children?
- It’s 5pm and we need to prepare an offer for tonight, but you have to pick up your child from daycare, how do you handle the conflicting priorities?
Relevance is a factor in whether a question is illegal or not: you, as an employer, might think it essential that your real estate assistant who you may want to be at your beck and call days, nights and weekends, and so someone with several children might not be your preference but you cannot ask them about their family status. Ultimately, it’s not up to you to decide that a mother with three kids isn’t suitable for a job that involves weekends. Keep in mind, some requirements to have your assistant available or on call outside of regular work hours might conflict with the Employment Standards Act or their personal life. Read more about that here.
Every province in Canada has its own human rights codes and commissions, but in the area of employment and interviews, they are all fairly consistent. We’ve compiled a list of the questions that you cannot ask, and included ways that those questions can be rephrased, where applicable.
Here are 8 types of questions you should NEVER ask.
1. Don’t ask a candidate about their nationality or citizenship
Where you were born, unless the job requires security clearance, isn’t relevant to someone’s ability to the do the job.
Do NOT ask:
- Are you a Canadian citizen?
- What’s your native language?
- Where were you born?
You CAN ask:
- Are you legally authorized to work in Canada?
- What language(s) do you read/speak/write? — note: you can only ask this if it is directly relevant to the job. For example, the ability speak in French might be a requirement of the job because of the client base you’re dealing with. That would make it relevant.
2. Don’t ask a candidate how old they are
Ageism is real and often times, it’s more of an unconscious bias that comes into play. As a result, many candidates will go to some length to dissimulate their actual age, for example, by removing dates from the education portion of their CV.
Do NOT ask:
- When did you graduate from college or university?
- What’s your date of birth?
You CAN ask:
- Are you over the age of 18?
3. Don’t ask a candidate about their family status
As mentioned above, asking a candidate whether or not they are married, whether they have children, or plan to get married and / or have children, is not relevant. It also can’t be a backhanded way to find out if they are a member of the LGBTQ community.
Do NOT ask:
- What kind of child care arrangements do you have set up?
- How many kids do you have? And if none, do you plan to have some in the near future?
- Are you married?
- Whom do you live with?
You CAN ask:
- Can you work overtime, evenings and weekends? — you have to ask this of EVERY candidate who applies for the position you are interviewing for.
- There will be travel required for this position, about 10% of the time. Are you willing to do this? — again, you have to ask this of every candidate.
- There’s a possibility that we might relocate the office to the next town. Would this still work for you?
4. Don’t ask a candidate any personal physical questions
There are some jobs where a person’s height or weight are factors in whether or not they can perform their duties, but not many. For a realtor’s office, there is no legal basis for asking personal questions like that.
You CAN ask:
- “Can you lift 40lbs and carry it 100 metres and load it into a truck?” — this is the kind of personal question you can ask, if it’s relevant to the job duties AND you ask it of all the candidates.
5. Don’t ask a candidate about their race
There is no ‘you CAN ask’ for this one because there is no plausible reason to ask anyone, at any time, what race they are. Ever. Not even to satiate your curiosity… not during an interview.
6. Don’t ask a candidate about disabilities
Unless it’s directly relevant to the tasks, you cannot be asked about any disabilities that a candidate might have. From ADHD to being confined to a wheelchair, visible or not, these disabilities are not relevant for most roles.
Do NOT ask:
- Have you had any operations in the last X number of years?
- How often do you get a physical with a primary care physician?
- Are there congenital illnesses that run in your family?
- How did you end up in a wheelchair?
You CAN ask:
- Here are the job tasks you will be required to do. Can you do them? — while a person may need accomodations in order to do the job, the fact of whether or not it’s possible for them is all you need to know. You can deal with the question of what, if any, accommodations they will need AFTER you offer them the job.
7. Don’t ask a candidate about their religion or affiliations, political or social
There are two things you shouldn’t talk about at dinner parties: politics and religion. Keep to that rule in interviews too! While you might not like someone’s political views or not agree with their religion’s strictures, it has nothing to do with their ability to do the job you are interviewing for.
Do NOT ask:
- Are you a member of a political party?
- Does your religion have holidays that will conflict with our standard office ‘close dates’ schedule?
You CAN ask:
- You will need to work on certain Sundays throughout the year. Are you available to do that? — as with other questions like this, you must ask it of all candidates.
8. Don’t ask a candidate about their criminal record
This is one that is hard to get many people to understand but a person’s arrest / criminal record isn’t necessarily relevant to their job. Asking them generally about whether or not they have ever been arrested and / or convicted of a crime is too broad. Jobs that require dealing with certain groups (like children) typically require a police check, so that will help you deal with this issue in those cases.
You CAN ask:
- Have you ever been convicted of XYZ crime? — the question must be specific and must be relevant to the job. For example, if you’re hiring a back office person, you cannot ask them if they’ve ever been convicted of drunk driving. It’s not relevant to the job at hand. You could ask if they’ve ever been convicted of embezzling, but that’s a stretch with most applicants!
Having long experience in what sorts of questions are acceptable, or legal, and what aren’t is a great reason to leverage the services of a recruiter. At AGENTC, we can point out to you any gaps or issues with a candidate so that the interviews can be managed, protecting both you and the candidates, from questions that range from inappropriate to illegal.
Worried about what to ask and not ask? No sweat! Ask us for our free interview questions at info@agentc.com
