“Asking for Trouble”: BC Human Rights Tribunal considers whether interview questions crossed the line
The interview process can be a legal minefield for employers. One false step, one inappropriate question can give rise to a human rights complaint alleging that the employer has discriminated against the prospective employee. In a recent decision, Jahromi v. Link2 Manufacturing and another, 2017 BCHRT 161 (“Jahromi”), the BC Human Rights Tribunal (the “Tribunal”) considered whether one employer’s interview questions crossed the line between permissible inquiry and outright discrimination.
S.J. filed a complaint with the Tribunal alleging that Link2 Manufacturing and the Link2 employee who interviewed him discriminated against him on the basis of his family status, ancestry, place of origin, and race. S.J.’s complaint arose out of a series of events occurring during his Link2 job interview. According to S.J., the interviewer asked where he was from, where his parents were from, and if he lived with his family (the “Questions”). He said these Questions made him feel “uncomfortable” and he felt pressured to respond.
The interviewer neither confirmed nor denied whether she asked S.J. these questions. However, the interviewer recalled asking S.J. how to pronounce his last name, so as to ensure she was pronouncing it correctly, as a matter of respect.
In the end, S.J. did not get the position; another candidate was hired. S.J. alleged he did not get the job because of his responses to the Questions, which related to his family status, ancestry, place of origin, and race. The Respondents denied the allegations, maintaining that S.J. was not hired because of his high and inflexible wage expectations and because his professional experience and education did not meet their expectations. They also said the successful candidate was more qualified and performed better during the interview process.
The Tribunal’s Decision
In assessing the threshold question of whether S.J.’s claim had a reasonable chance of success, the Tribunal observed that, unlike its counterpart in Ontario, the BC Human Rights Code does not contain a provision expressly prohibiting the asking of interview questions regarding protected characteristics, such as family status or disability. In Ontario, simply asking such questions is impermissible, even absent an intention to discriminate or evidence that the answers were in fact used to discriminate. The Tribunal noted that in BC, by contrast, whether questions regarding protected characteristics are discriminatory will depend on the context. The Tribunal summarized the law as follows:
 … in British Columbia, in the course of an employment interview, a question in relation to a personal characteristic is not expressly prohibited, but may be discriminatory, depending on the context. As in all Canadian jurisdictions, a discriminatory motive is not necessary. Rather, it is the effect that matters.
Turning to the application of this principle, the Tribunal noted that Mr. S.J. had not identified his personal characteristics in relation to his family status, ancestry, place of origin, or race. Although S.J. claimed that the questions asked of him were “illegal” and that he felt “uncomfortable” answering them, the Tribunal could not, without more, find that his claim had a reasonable prospect of success.
The Tribunal was quick to clarify, however, that this did not mean these sorts of questions could never be discriminatory. Rather, the conclusion in Jahromi was based solely on the “dearth of relevant information” presented by S.J. regarding his protected characteristics. In the result, the complaint was dismissed.
Jahromi emphasizes that, at least in BC, when assessing whether interview questions touching upon a personal characteristic protected under the Code may constitute discrimination, context is king: the same question found to be discriminatory in one context may be perfectly permissible in another. Although questions touching upon protected characteristics – such as where the interviewee is from – may be an ordinary part of “small talk” arising naturally in the course of conversation, employers must remain mindful of (i) the types of questions they ask, particularly where a question may yield information about a protected characteristics, and (ii) the use they make of such answers when deciding whether or not to hire the candidate.
The Tribunal cited the following passage from Mbaruk v. Surrey School District No. 36,  B.C.C.H.R.D. No. 50, which provides useful guidance to employers:
 The Act does not prohibit the mere asking of questions that touch in some way on a prohibited ground of discrimination. In my view it was not the intent of the legislature to impose such limits on employment interviewers that they are paralysed from engaging in normal social conversation out of fear that they may violate the Act by alluding to some matter which touches on a prohibited ground of discrimination. That does not mean interviewers need not be concerned with the content of their questions. They should be sensitive to the person they are interviewing and avoid questions that may be perceived as offensive. They should also avoid asking questions that may elicit information that could be used to discriminate on a prohibited ground unless they have a lawful requirement for that information.
If you have any questions about the law governing the interview process or related issues affecting your business, do not hesitate to contact one of the members of our Labour and Employment group.
*This blog was written with the assistance of Connor Bildfell, Articling Student.