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______________________________________________________________________________Stewart McKelveyDoing Business in Atlantic Canadaduring the interview. Likewise, the employer may defend itself by depending on notes made during theinterview.Employment References – Background InvestigationsStudies suggest that up to one-third of job applicants misrepresent themselves or their credentials ontheir applications and résumés. Employers should state on application forms when they will seekreferences. Prior to contacting a reference, the employer should obtain express permission from thecandidate. When asking information from a reference, do not ask for personal information or forconjecture about the applicant but ask structured and relevant questions that will enable you to gainaccurate additional information about the candidate’s abilities.Holding particular qualifications, training or licences may be important to a job. It is reasonable to askcandidates for proof of qualification. If checks on qualifications are going to be made, it is good practiceto ensure that the candidate knows, and that copies of any relevant documents will be held in theirpersonnel file.Background investigations may also be necessary in certain circumstances (e.g. driver abstracts). Thistype of investigation may be useful in determining safety risks as well as suitability for a particularposition.When conducting any reference or background investigation, employers should at all times be aware ofthe risk of attracting a human rights complaint from a candidate who is not hired on the basis of thereference or background investigation. The following section details employers’ human rights obligationsand considerations in Atlantic Canada.Human Rights ConsiderationsAll Canadian provinces have human rights legislation that prohibit discrimination based on enumeratedgrounds. In addition, each statute limits employers from eliciting information, directly or indirectly, aboutany of the protected characteristics of an application for employment.Each Atlantic Province has a slightly different array of protected characteristics, but they all include thefollowing: race, colour, national origin, physical disability, mental disability, marital status, sexualorientation, sex, and political belief. Employers in each province are prohibited from discrimination on theenumerated grounds unless able to establish a bona fide occupational qualification justifying thediscrimination. A discriminatory standard, requirement or qualification may be justifiable where it can beestablished that the discrimination is rationally connected to the function performed; adopted in an honestand good faith belief that it is necessary to fulfill a certain purpose; and the individual cannot beaccommodated without undue hardship to the employer. Undue hardship is determined by consideringfactors such as cost to the employer, health and safety implications and workplace morale.Questions related to any of the prohibited grounds listed in the provincial legislation should be avoided inthe pre-employment stage, since this could lead to a complaint of discrimination from a prospectiveemployee who is not awarded the job. Inquiries that should be avoided include:• questions about physical characteristics such as eye or hair colour or requests for photographsas this may elicit information related to an individual’s race;• questions about religious affiliations, churches attended or customs observed;• questions regarding citizenship (however, an application or interviewer may ask whether theapplicant is legally entitled to work in Canada);• questions such as “maiden” or “birth” name; child care arrangements; marital status; or anyinformation about a spouse that may discriminate on either the basis of sex or family status; andPage 58