Human Rights in Ontario: Running Background Checks on Job Applicants – How Far Can An Employer Go?

Mar 30, 2012

Human Rights in Ontario – Hiring

The cost of a bad hire can be expensive. Employers can minimize a hiring mistake by checking references, conduct psychological testing and hiring a headhunter. There is a lot of information available about potential employees in cyberspace, including social media platforms like Facebook.

Can an Employer demand access to a Job Applicant’s Facebook account during the hiring process?

This issue arose last week when both the Ontario Human Rights Commission and Facebook weighed in on the issue.

What Says the Ontario Human Rights Commission?

In a March 23rd post on its Facebook account, the Ontario Human Rights Commission said: “Don’t Do It”

“Employers should not ask job applicants for access to information stored on social media or other online sites and that doing so could leave an employer open to a claim of discrimination under the Code”

What says Facebook?

On March 23, 2012 in a posted statement, Facebook also said: “Don’t Do It.”

“As a user, you shouldn’t be forced to share your private information and communications just to get a job. And as the friend of a user, you shouldn’t have to worry that your private information or communications will be revealed to someone you don’t know and didn’t intend to share with just because that user is looking for a job. That’s why we’ve made it a violation of Facebook’s Statement of Rights and Responsibilities to share or solicit a Facebook password.

Facebook noted that this practice could lead to legal liability such as discrimination claims (see above) and damage claims for disclosing private information.

Facebook’s advice to its users: “…you should never have to share your password, let anyone access your account or do anything that might jeopardize the security of your account or violate the privacy of your friends.”

Lessons to be learned

1. A Facebook user is not permitted to share his or her password as a condition of using Facebook.

2. If an employer takes one of the 14 prohibited grounds under the Ontario Human Rights Code, such as the person’s religion, into account when deciding not to hire a job applicant, then there has been a violation of the Code. If an employer does not know a person’s religion then the employer cannot discriminate on this basis. If however the employer finds out about an applicant’s religion by reading the person’s Facebook posts, and then decides not to hire the person, then the applicant can claim it was because of his religion.

If you have any questions about an employer’s obligations to a job applicant, please call us at 1–888-640-1728 or email us at [email protected]

The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.

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