a) General principles
This section outlines key considerations for application forms and parts of application forms that raise concerns about Code violations. Employers can use this information to make sure that the application forms they use are non-discriminatory and relate only to qualifications and requirements relevant to the job and the hiring decision. When application forms include inappropriate questions relating to Code grounds, an inference can be made that such questions may have influenced a decision not to hire.
Although there are exceptions in the Code that allow for some questions that would otherwise be discriminatory, these only apply to the interview stage. For information on questions at the interview stage, see Section IV-5d – “Make sure interview questions comply with the Code.“
The sample application form in Appendix D provides guidance to employers in designing individualized employment application forms that are consistent with the provisions of the Code and the principles outlined in this section. Employers are welcome to add to or modify this application form to suit individual needs, while making sure that the final application form reflects the considerations below.
Do not ask for information related to Code grounds
Section 23(2) of the Code prohibits the use of any application form or written or oral inquiry that directly or indirectly classifies an applicant as being a member of a group that is protected from discrimination. Application forms should not have questions that ask directly or indirectly about race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, record of offences, age, marital status, family status or disability. There are limited situations where questions relating to Code grounds may be asked in an interview or taken into account when hiring. These are discussed in Section IV-5d(i) – “Hiring based on Code grounds for a special program” and Section IV-5d(ii) – “Hiring based on Code grounds if special employment exemption applies.”
Example: A social service agency’s application form asks applicants to provide their date of birth. It states that it needs to use this information to perform criminal record checks. Collecting age-related information on the application form could lead to concerns that age is a factor if an applicant is screened out at an early stage. Instead, the employer can make an offer of employment conditional on confirming that the person does not have a record of an unpardoned criminal offence. The person’s date of birth can be asked for at this stage.
Photos: Sometimes employers ask applicants to submit a photo along with their applications. It has long been the Commission’s position that employers should not request photos of potential employees, since they may provide information related to a number of Code-related grounds, such as race, colour, sex or age.
While information related to race, colour, sex or age might be relevant to a special program intended to address hardship or disadvantage related to Code grounds, photos are not reliable sources of such information. Employers attempting to put a special program in place to increase the diversity of their workforce would be better served by asking employees to self-identify, while putting appropriate safeguards in place for using this type of information.
Driver’s licence: A driver's licence contains personal information that could lead to the applicant being classified according to disability or another prohibited ground. An application form should not include a request to provide a copy of a driver's licence or any questions about a person's eligibility for a driver's licence. If driving is an essential requirement of the job, the employer should only request a copy of a driver’s licence after making a conditional offer of employment.
The next section describes other requirements that should not be included on application forms because they may be discriminatory barriers.
b) Specific concerns about individual Code grounds
No questions about age are permitted on an application form, other than whether an applicant is 18 years or over. Employers should not ask for the date of birth or a birth certificate, or for other documents that indicate age (such as baptismal records, driver's licence, etc.).
When age or date of birth is relevant to an essential duty of a position or for enrolling in company benefit and pension plans, this information should only be requested after a conditional offer of employment.
Example: An application form for the job of driver may ask whether the employee has a drivers’ licence, if driving is an essential duty of the job. An application form for that position should not ask for a copy of the applicant’s driver's licence because it contains personal information that could lead to the person being classified according to age. If the person is not offered the job, such a request could also lead to a suspicion that the decision was based on inappropriate factors such as age.
ii) Citizenship, place of origin or ethnic origin:
Employers can ask, "Are you legally entitled to work in Canada?" on an application form. No other questions about these grounds are permitted. Also prohibited at the application stage are questions about:
- landed immigrant status, permanent residency, naturalization or refugee status
- place of birth
- Social Insurance Number, which may contain information about an applicant's place of origin or immigration status. A Social Insurance Number may be requested after a candidate has received a conditional offer of employment
- questions about which “community” a person belongs to
- membership in organizations such as cultural or ethnic associations.
Information about a person's education at this stage should be limited to information about the degree or level of education, professional credentials, diplomas, etc. received. Asking applicants to provide the names of schools or copies of diplomas, certificates and professional credentials may indicate place of origin. Therefore, it is advisable not to collect such information until after making a conditional offer of employment.
There are no permissible questions on an application form related to religion or creed. Prohibited questions at the application stage include those about:
- religious affiliations, churches, temples or other religious institutions attended
- whether religious holidays are observed
- whether particular religious customs are observed
- willingness to work on a day of the week that is usually a Sabbath or other religious day of rest, such as Friday afternoons, Saturdays or Sundays
- character references that would indicate religious affiliation, such as a request for references from a person’s religious or spiritual leader
- questions about the name and location of schools, diplomas, certificates and professional credentials, as these may indicate religious affiliation.
If an employer is concerned about a person's availability for work because of shifts or other scheduling reasons, it is advisable to wait until a conditional offer of employment has been made before asking about how the person's religious needs may be met. Also keep in mind the duty to accommodate.
Aside from responding to a request for accommodation in the hiring process, there are no permissible questions about disabilities at the application stage, including those related to:
- general health and medical history
- mental disorders or illnesses
- physical or intellectual limitations
- developmental disabilities or intellectual impairment or learning disabilities
- number of sick days taken
- Workplace Safety and Insurance Board claims
- membership in medical or patient associations (such as Alcoholics Anonymous)
- predisposition to medical conditions
- insurability or eligibility for benefit plans
- substance abuse or treatment for substance abuse
- possession of a valid driver’s licence
- pre-employment medical examinations or drug tests
- the need for accommodation on the job.
v) Family status:
No questions about family status are permitted at the application stage. This includes questions about:
- whether a person has or may have children
- whether a person has family responsibilities
- whether family responsibilities limit the person’s availability (including potential availability for overtime hours).
Instead of asking whether a person's family responsibilities limit his or her availability, it is advisable to ask if the person is free to travel or relocate. An employer may only ask this if being able to travel is a bona fide requirement. If so, all applicants should be asked this question. Employers should not assume that a person with young children or other significant caregiving responsibilities will not be interested in work that involves some travel.
vi) Marital status:
No questions about marital status are permitted. This includes questions about:
- whether the candidate is single, married, separated, divorced, or living in a common-law relationship
- the candidate's spouse (for example, "Is your spouse willing to transfer?")
- maiden or birth name
- form of address (Mr., Mrs., Miss, Ms.)
- emergency contact or insurance beneficiary.
Instead of asking whether an applicant's spouse is willing to transfer, it is advisable to ask, when relevant to the job, if the applicant is free to travel or relocate.
vii) Race-related grounds:
There are no permissible questions about race-related grounds at the application stage. The following kinds of questions are prohibited:
- inquiries about physical characteristics such as eye colour, hair, height, and weight
- requests for photos
- questions about which “community” a person belongs to.
viii) Record of offences:
It is permissible to ask: "Have you ever been convicted of a criminal offence for which a pardon has not been granted?" Prohibited questions are those relating to whether an applicant has ever:
- been convicted of any offence (this may elicit information on pardoned offences)
- spent time in jail
- been convicted under a provincial statute (for example, the Highway Traffic Act)
- been convicted of an offence for which a pardon has been granted.
ix) Sex and pregnancy:
There are no permissible questions related to sex and pregnancy. Prohibited questions at the application stage include questions about:
- forms of address (Mr., Mrs., Miss, Ms.)
- the last name before marriage (maiden or birth name)
- the candidate's relationship to the person listed as an insurance beneficiary or to be notified in case of an emergency
- plans to start a family
- whether the applicant is, has been, or intends to become pregnant.
Instead of asking whether an applicant has or plans to have children, it is advisable to ask, where essential to the job and a bona fide requirement, if the applicant is free to travel or relocate.
x) Sexual orientation:
No questions about sexual orientation are permitted. This includes questions relating to:
- forms of address (Mr., Mrs., Miss, Ms)
- categories on application forms or inquiries such as married, common-law relationship or divorced
- attendance at the Pride parade
- membership in community groups or advocacy
- questions about a spouse/partner such as "Is your spouse willing to transfer?" Instead, if availability to travel is a bona fide requirement, ask if the applicant is free to travel or relocate.