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Interviewing: asking the right questions (andavoiding the wrong ones)Human rights obligations continue throughthe interview process.Questions about health, illness,mental disorders, medical history,workers’ compensation claims, oraccommodation of disability-relatedneeds.The effect of human rights legislation is thatemployers are prohibited from elicitinginformation, directly or indirectly, about anyprotected characteristics (as previouslymentioned, these characteristics varyamongst the jurisdictions). Questionsrelating to any of the prohibited groundslisted in the provincial legislation should beavoided in the pre-employment stage, sincethis could lead to a complaint ofdiscrimination from a prospective employeewho is not awarded the job. Inquiries thatgenerally should be avoided, unless thesituation involves an exemption from humanrights legislation such as where bona fideoccupational requirements exist, include:Questions about physicalcharacteristics such as eye or haircolour or requests for photographsas this may elicit information relatedto an individual’s race;Questions about religious affiliations,churches attended or customsobserved;Questions regarding citizenship(however, an application orinterviewer may ask whether theapplicant is legally entitled to work inCanada);Questions about “maiden” or “birth”name, child care arrangements,marital status, or any informationabout a spouse that maydiscriminate on either the basis ofsex or family status; andEmployers should be aware that candidateswho later make a human rights complaintmay have the right to ask for copies of anynotes made during the interview. Likewise,the employer may defend itself bydepending on notes made during theinterview.The Employment AgreementParties to all employment relationships havean employment agreement whether writtenor not. Employment contracts can be inwriting, oral or implied. The terms of anagreement may provide for matters such asduration and the parties’ obligations upontermination of the relationship.Our clients generally prefer to enter intocarefully drafted written agreements withemployees that define and limitentitlements. Employment contracts usuallycontain details of the duties expected of theemployee, remuneration and other benefits.Such contracts may also containconfidentiality clauses, restrictivecovenants, and provide for agreed-uponemployee entitlements on termination.Courts and other decision makers willcarefully scrutinize employmentagreements, in part because there is aconcern that there is an imbalance ofnegotiating power between employers andemployees. That said, a guiding principle ofEmployment and Labour Law 102