Braving tough questions during a job interview is one thing.
But the Canada Border Services Agency's deeply probing "integrity questionnaire" is a test that the Customs and Immigration Union says goes too far — with queries about applicants' drinking and gambling habits, their circle of friends, and even their histories of soliciting prostitutes.
Amid objections to the federal agency's 57-question survey for new recruits and aspiring career climbers, employment lawyers say job seekers are expecting interviewers to get more in-depth and personal when judging prospective hires.
And that could potentially spark legal wildfires, depending on how invasive the questions are.
"Some of the questions employers are asking are beyond the boundaries of what's appropriate," said James Heeney, a Toronto employment lawyer with the firm Robinson Heeney LLP.
"The issue is if someone wants a job, they'll often answer them because they don't want to lose the opportunity."
Mark Rouse, a partner with the Toronto recruitment firm IQ Partners, said clients have been asked anything from whether they've ever been fired for stealing, to: "If you're reincarnated as an animal, what animal would it be?"
Dorian Persaud, a Toronto lawyer whose practice areas include workplace investigation and employment law advocacy, said he's heard of interviewers in the education sector prying into how many romantic partners a potential hire has had.
"They'll look at those things as indicators of stability, to determine whether a person's in a relationship," Persaud said. "The assumption is that will show how reliable that person is going to be."
The popularity of social media and a recent uptick in Canada's jobless rate (now up to 7.4 per cent) might also be influencing invasive screening methods, according to human resources and labour experts.
Online accessibility to personal information has made digging into a prospective employee's background a simple task.
Facebook passwords requested in interviews
"But as that's progressed, the types of questions and the things people want to know about when they hire someone has been expanding rapidly," Heeney said.
In the U.S., candidates have complained about employers requesting their Facebook passwords to snoop around their profiles. It's just a part of the vetting process, the bosses reasoned, according to reports.
- Related: U.S. job seekers get asked for Facebook passwords
It's a scenario similar to what one of Heeney's clients recently experienced.
"While the person was being interviewed, they were asked to be a Facebook friend," he said. "So, 'Can we see your Facebook posts?' And then as well, [whether] they had a Twitter account so the interviewer could check out their posts."
Employers might be feeling emboldened to delve deeper due to higher national unemployment numbers, he said. With the market already crammed with competent applicants, personality and character increasingly could be seen as important distinguishing factors.
Heeney describes the current state of hiring as "an employers' market."
It's a practical reality, said John McGowan, another Toronto employment lawyer, with the firm Cassels Brock.
"If we were in a market where there just weren't enough qualified applicants, you'd be seeing employers take whoever's available, and not worrying so much about this," he said. "Where we have many qualified applicants and an undersupply of positions, employers can be more careful and diligent about the hiring decisions they make."
Whether or not questionnaires such as the CBSA's achieves that goal is another matter, McGowan said.
Among the 57 questions listed on the agency's ethics assessment form are:
- How much alcohol do you consume per week on average?
- Have you ever applied for a driver's licence and been denied, or has your driver's licence ever been restricted, suspended or revoked for any reason?
- Have you ever solicited the services of a prostitute?
- Do you or your spouse/common law partner or cohabiter gamble (including lottery, casinos, online gaming, scratch tickets, etc)?
Each question provides space for further explanation, and that's where the legal minefield lies, according to employment lawyers.
"It's not so much the questions that concern me; it's what are they going to do with the answers?" McGowan said.
From 'benign' question to discrimination charge
A "seemingly benign" question like whether a candidate has ever had his or her driver's licence suspended could inadvertently elicit an answer that would lead to accusations of discrimination, based on a perceived violation of Canadian human rights legislation.
"Sometimes there are medical reasons that a driver's licence is going to be suspended. You have a stroke, you might have it suspended," McGowan explained. "So here you ask a benign question and someone answers, 'Yep, I had a stroke.' Now you've got an applicant who admits to having a medical issue."
Come decision time, do you hire that person? If not, McGowan said, the question becomes whether the employer took into account a factor — the potential medical issue, or stroke — that the company didn't have the right to knowing about in the first place.
"The human rights legislation says you can't discriminate on the basis of a prohibitive ground, one of which is a disability or perceived disability," he said. "And the argument would be that you didn't hire me because I had a stroke."
Had such a question not been asked in the first place, the problem wouldn't have arisen, he argued.
"All that person knows is they didn’t get the position. They're thinking, they must not want to hire anybody who's had a heart attack, and that sounds discriminatory," McGowan said.
Persaud, who also reviewed the CBSA questionnaire, said the same case could be made for someone who honestly answers the question about alcohol consumption, but reveals himself or herself to be an addict.
"That individual has a disability. The addiction to alcohol is a recognized disability," he said. "If the individual isn't then given the job because they disclosed they consumed a certain number of beers a week … they could contest it as a reason they weren't given the job."
The same also goes for how much someone might divulge about their gambling.
In the case of an officer aiming to complete the survey to win a promotion, the applicant's answers could hypothetically put the CBSA in a tricky position of now possessing personal information the agency ordinarily wouldn't have been able to ask for.
'I don't think that question is appropriate'
What then becomes important for the employer's protection, Persaud said, is to articulate in writing "why they prefer one candidate over the other, in order to demonstrate they didn't consider the protective ground as a basis for why they didn't give that employee that job."
There isn't any piece of legislation that protects someone from inappropriate or invasive questions, he added.
Rouse, who estimates he's interviewed thousands of candidates during his five years as a recruiter with IQ Partners, said the easy part is matching a person's skill sets to the position.
"The harder part is establishing a person's fit within the [corporate] culture."
A common method he uses to assess personality is by asking "What do you like to do for fun?" or requesting specific examples of how the person once resolved a messy workplace scenario.
As for how an interviewee should respond to a particularly nosy or irrelevant question, Rouse suggests a firm but respectful answer: "I'm not sure, or I don't think that question is appropriate. Can you tell me what it is that you're looking to learn from that question? And maybe I can provide you with a useful answer."
Another obvious pitfall of intensely probing questions is they can invite lies, noted Lauren Bernardi, a Toronto-based employment and human rights lawyer who runs training programs for the Human Resources Professionals Association.
"Why would I possibly want to tell you some of that?" she said. "If an employer's worrying about criminal activity, they're probably better off to just run a background search."
Bernardi said criminal record checks are on the rise, and candidates shouldn't be taken aback if they're subjected to that kind of scrutiny due to corporate concerns about workplace violence. But there are lines to be considered as far as how occupational codes of conduct might spill over into the private side.
"We're starting to creep into the personal and see what people are doing because we can," she said. "At some point, you have to decide that people are allowed to have personal lives."
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