Last updated on December 1, 2021
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:
- Do you have a criminal record?
- Do you have any medical illnesses?
Thanks,
—Todd
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:
- Race
- Religion
- National/ethnic origin
- Colour
- Age
- Sex/sexual orientation
- Marital/Family Status
- Physical/mental disabilities
- 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:
- The criminal record check, if shared directly with the employer, should not contain any pardoned offences
- 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 https://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.
Background checking is so much important today, but it should be done in the right way. Asking any type of personal questions might hurt someone’s sentiment and it might be against the law. So the employers must obtain the consent and should have the appropriate reason to ask these kind of questions. Apart from that, many times employers come up with inaccurate background information on the prospective employees and they get rejected without any reason. However, employers should always choose a reliable background check company who have the fastest turnaround time with accurate background check report.
i was hired for a job and took a drug test and physical and passed, but i put down that i take suboxon,and the medical place made me give them a release letter from my doctor atating i can do the job with no side effects and have ni limitations,they also asked for my medical records and are now sharing this information with the employer and they havent called me back yet. can they do this 1. and if the deny me employment after they already hired me after i gave them everything they asked for, and is this discrimination
What rights do I have I can’t prove I did not get the job cause of my medical or criminal record. No job, no lawyer… thanks.
Working on it loadstone.
See de Pelham v. Mytrak, Ontario Human Rights Tribunal.
Now going to a civil constitutional challenge re:human rights protection for unpardoned offenses.
Should we discrimination against Canadian citizens based on their criminal records?
If the Court did not impose limits to employment (or otherwise) when sentencing the individual, then why is a criminal record relevant outside the penal system? If it is relevant, then how is it not in violation of the CANADIAN CHARTER OF RIGHTS AND FREEDOMS particularly section 11 (g)?
It cost a significant amount of money to get a record suspension, so how is that not adding further punishment?
In order to protect our fundamental right and freedoms, it would be interesting to see what a judge thinks about all this.
If we don’t fight for our rights, then eventually we won’t have any. The reason for that is another issue.
Thank you for your help I’am studying law and it helps me understand my course