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Not all Questions are Good Questions: Avoiding Discriminatory Interview Practices

11-10-2018

Much ink has been spilled over a recent decision by the Commission de la fonction publique (the "Commission") on the topic of discriminatory interview practices. In Association des procureurs aux poursuites criminelles et pénales et Directeur des poursuites criminelles et pénales, the Commission found that the plaintiff had been discriminated against when she was denied a position due to her pregnancy. The Commission decision was mainly based on her employer's comments and questions prior and during her interview. The Commission ordered that she be granted the position.

 

Facts

 

Following R v. Jordan, a landmark decision rendered by the Supreme Court of Canada on the subject of the delays for an accused to be heard, the Director of Criminal and Penal Prosecutions (the "DCPP") created numerous new legal positions in order to reduce such delays. The plaintiff in this case was already a lawyer with the DCPP when she found out that she was pregnant and applied for one of the newly created positions.

 

When her manager, who was also a member of the selection committee, found out that she had applied for one of the new positions, she told the plaintiff: "[our translation] you can't apply, you won't be here,"referring to the fact that she would be on maternity and parental leave and therefore not available to start immediately. Furthermore, during the interview, she was asked if she was going to take a long or short leave following the birth of her child.

 

Prior to the interview, the plaintiff was ranked first out of the candidates who had applied and were selected for an interview due to her experience and her previous evaluations. Following the interview, she was ranked third. Therefore, she did not get the position. The employer explained that she was not selected for the position essentially because she did not "[our translation] sell herself" well during the interview.

 

Decision

 

In its decision, the Commission applied the two-prong analysis confirmed by the Supreme Court decision in the 2015 Bombardier case, that is (1) determine whether there is prima facie discrimination and (2) if so, is the contested decision justified in some other manner.

 

In this case, the Commission determined that there was a clear link between the plaintiff's pregnancy, which is an prohibited ground of discrimination under the Quebec Charter of Human Rights and Freedoms, and the refusal to grant her the position. The DCPP knew that she was pregnant during the interview process and asked her a question directly related to her pregnancy that had no relevancy to the position. The Commission determined that such a question and any other sensitive question relating to a person's pregnancy are illegal and should never be asked during an interview. Candidates must not be asked questions based on prohibited grounds of discrimination during such a process. Moreover, the Commission also found that the manager's comment prior to the interview relating to the plaintiff's absence from work during her maternity and parental leave was also discriminatory.

 

The Commission explained that it was inconceivable that she went from being ranked first prior to the interview to being ranked third, and ultimately not getting the position, only because she didn't "[our translation] sell herself" well during the interview. She was the most experienced candidate and should have gotten the position. The Commission concluded its analysis by stating that her candidacy was simply refused because she was not going to be immediately available because of her maternity and parental leave.

 

The Commission determined that the only appropriate remedy was to order that the plaintiff be granted the position. Re-doing the interview or the selection process would only give the employer another opportunity to refuse her candidacy for the position. The Commission found that she should have gotten the position in the first place, therefore, the employer should be ordered to grant her that position.

 

Lessons learned

 

This decision not only serves as a cautionary tale for employers with regard to the type of questions that may be asked during interviews, but also with regard to comments that may be made prior to an interview. Furthermore, although not expressly mentioned in the decision, it does not appear that the Commission considered the employer's need to fill the position quickly to be a valid justification for refusing the plaintiff's candidacy. Indeed, an employer can hire a temporary employee to fill a vacancy during an employee's maternity and parental leave.

 

Finally, this decision is only one of many recent human rights decisions in Quebec where tribunals found that a candidate had been discriminated against mainly because of the questions that were asked during the interview process. Therefore, employers, especially in Quebec, should consider updating their interview protocols or providing additional training to those conducting interviews to reduce their risks of having discrimination complaints filed by persons' whose candidacy are ultimately not retained.

 

https://www.fasken.com/en/knowledgehub/2018/10/hr-space---not-all-questions-are-good-question#

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