Todd writes to us with questions about the type of information that can be asked on a pre-employment screening application:

Question

On an application form can an employer ask the following questions:

1. Do you have a criminal record?
2. Do you have any medical illnesses?

Thanks,

Answer

Hi Todd,

Whether an employer can ask you if you have a criminal record or medical illness is an interesting question because of its potential impact on your privacy and human rights. This question is usually asked by potential employers in the pre-employment screening stage of applying for a new job.

From a privacy perspective, an organization under PIPEDA must abide by the 10 Privacy Principles of PIPEDA, the fourth being Limiting Collection which states that the collection of personal information should be limited to what is necessary for the purposes identified.

In other words, an organization has no reason to ask about the existence of a criminal record or medical illness unless it has a justifiable reason for doing so.

From a human rights perspective, as a general rule, employers in Canada are forbidden to discriminate on certain grounds. These include:

1. Race
2. Religion
3. National/ethnic origin
4. Colour
5. Age
6. Sex/sexual orientation
7. Marital/Family Status
8. Physical/mental disabilities
9. Pardoned criminal offences

However, an employer can discriminate on these grounds if there is a “bona fide occupational requirement” — that means the organization can prove that discrimination is necessary to fulfill the requirements of the position.

The employer has an obligation to prove that the position would be impossible to accommodate without undue hardship.

Criminal Records

If an employer is asking you to declare any criminal offences, they will usually ask you to list those that have not been pardoned. The reasons for that are two-fold:

1. The criminal record check, if shared directly with the employer, should not contain any pardoned offences
2. An employer cannot discriminate on pardoned offences, so it doesn’t make sense to collect that information in the first place

The rules may be slightly different if you need to undergo a Vulnerable Sector Check.

You are not obligated to admit to a criminal record, but it is generally a better idea to be honest and up-front with a potential employer as a criminal record check should reveal all offences that have not been pardoned.

If you have an unpardoned criminal record, an employer can refuse to hire you depending on certain factors such as the nature of the offence and how long ago it occurred. This will depend on how relevant your offence is to the position and how comfortable the organization feels in hiring you for the position.

How to Get a Pardon

If you want to learn more about getting a pardon, contact Pardons Canada at http://www.pardons.org/ or 1 (877) 929 – 6011.

Medical Illnesses

Similar to asking if you have a criminal record, an employer can ask you if you have any medical illnesses which may make it impossible for you to fulfill the requirements of the position.

However, an employer must make every reasonable effort to accommodate someone who falls under the protected grounds of discrimination mentioned earlier. An employer does not need to accommodate if doing so would cause undue hardship.

Legal Recourse

If you believe you have been discriminated against, your legal recourse includes contacting your local human rights tribunal to file a complaint.

For contact information and a handy guide on workplace discrimination, the Commission for Labor Cooperation offers a free guide to employment discrimination laws in Canada.