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10 Illegal Questions You CAN’T ASK Potential Employees

By June 24, 2014July 28th, 2023Employment Law

You’re interviewing someone for a possible position at your practice.  You’ve got a bunch of questions you’re going to ask them.  Some questions may have come from the internet; perhaps others came from other dentist colleagues.  But please keep in mind that you simply cannot ask certain types of questions during an interview – or you may find yourself in legal hot water!!!

So, before we get into those the questions that you simply CANNOT ask during an interview, here is some background information so that you’re well-informed:

In Ontario, we have the Human Rights Code, R.S.O. 1990, c H.19 (the “HRC“).  Section 5(1) of the HRC states as follows:

Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability

You, as an employer, must govern your workplace based on these equality rights.  And you must ensure your existing team members also follow these rules (you’re liable for them too!).  The bottom line is that you cannot discriminate against existing or future employees based on any of these factors.

Some interviews are very informal and conversational in style, so there will be instances where an interviewee volunteers information.  However, you should be vigilant of potential human rights complaints and steer these conversations away from the topics that have the potential to land you in hot water.

There may also be instances where asking a certain question is mandated by the kind of work the person will be doing (see the examples I give below), but this does not give you carte blanche to ask discriminatory questions.

The following are 10 illegal questions or topics you should avoid during interviews:

1. Age

Never ask the potential employee’s age or year in which they were born.  You may ask a very vague question such as “are you between the ages of 18 to 65?”.

2. Gender / Sexual Orientation

It is never OK to ask a potential employee about their gender or sexual orientation.

3. Race

It is also never OK to ask about the person’s race, skin colour, eye colour or any other race-identifying factors.  Of course, this will apply more in a phone interview setting as opposed to face-to-face interviews.

4. Religion / Creed

You may not ask the potential employee about their religious affiliation or denomination, what church/mosque/synagogue they attend.  You may not ask the name of their pastor, minister, or rabbi.  

You should not ask which religious holidays the interviewee observes.  If you wish to know if they can work certain shifts, you should ask, for example, “can you work Saturday or Sunday”.

In the 2009 decision of Qureshi v. G4S Security Services, 2009 HRTO 409 the Human Rights Tribunal of Ontario (the HRTO“) found that Qureshi, a potential security guard, was discriminated against on the ground of creed.  The would-be security guard was ejected from the security guard training program for requesting 1 hour off each Friday for prayer.  The HRTO found that G4S had a duty to accommodate Qureshi’s request and that it was not incumbent on Qureshi to inform G4S of his religious need at the interview process.  The HRTO awarded Qureshi approximately $7,500 for lost wages and injury of dignity, feelings and self-respect.

5. Personal

You cannot ask about a person’s personal details, for example, “how tall are you? ” or “How much do you weigh?”

However, you can ask for personal statistics which are relevant to the job.  For example, if there is a possibility that your assistant will have to lift heavy packages of supplies, you may ask “are you able to carry heavy boxes for a short distance?”  

6. Arrest Record

You may not ask if the interviewee has ever been arrested.  But you may ask about arrests for crimes reasonably related to the performance of the job in question.

For example, if you are hiring a front desk staff who will be dealing with cash/cards and insurance requests, you may wish to ask if they have ever been arrested for theft, fraud, etc.

7. Disabilities

Unacceptable questions about disabilities include:

“Do you have any disabilities?”

“Do you now or have you ever had any illnesses or operations?”

“What is your family history?”

Acceptable questions include “are you able to perform the essential duties of this job?”.  If you are interviewing a dental assistant, you may ask them if they can stand for extended periods of time.  If you are interviewing for a receptionist, you may ask if they can sit for an extended period of time.  

You may only ask if a person requires accommodation to perform the job after a job offer has been made.  If you ask this question during the interview, you will likely be seen as asking about particulars of the person’s disability.

8. Affiliations / Political Views

You may not ask an interviewee about their affiliations or political views.  Asking about organizations or clubs which may assist in the performance of their duties is acceptable.

9. Nationality / Origin

You can ask if the potential employee is eligible to work in Canada, but you may not ask where they hail from, where their parents are from or what their mother tongue is.

10. Marital / Family Status

Asking about marital and family status in an interview is unacceptable.  This particular subject is especially relevant in a dental office setting, where the majority of staff are overwhelmingly female.

Not long ago I received a question from a dentist (let’s call him Dr. X) who hired a young female receptionist and found out one month later that she was several months pregnant and was going on maternity / parental leave for the next year.  Dr. X was outraged.  He said he felt “duped” and “cheated” because the girl did not tell him she was pregnant during the interview process.  He wanted to know if he had an obligation to give the young receptionist her job back upon her return from maternity leave.

Unfortunately for Dr. X, asking if the interviewee is pregnant amounts to discrimination.  The interviewee also has no obligation to disclose whether they are pregnant or not.  Dr. X ended up having to give the receptionist her job back upon her return from maternity leave.  Not doing so may have resulted in an HRTO case.

When interviewing, you cannot ask about a person’s living situation, their marital status, if they plan on having children, how many children they have, etc.

The kinds of questions that are acceptable include:

“Are you able to work the following shifts…”

“Are you able to work overtime or evenings/weekends if necessary?”

“Are you able to relocate if necessary?”

Even though you may have conscious or subconscious preferences when it comes to who you want working at your practice, you must be careful and refrain from asking questions that may open human rights complaints against you.

The Content of this post is provided for informational purposes only. It is not intended to be legal, financial, tax, or other professional advice of any kind. You are advised to contact DMC (or other counsel) to seek specific legal advice concerning your individual situation.