A Review of Canadian Human Rights Cases Involving the Employment Interview

A Review of Canadian Human Rights Cases Involving the Employment Interview

Hackett, Rick D

Abstract

The goal of this study was to assess the extent to which the scholarly literature on employment interviewing is reflected in the deliberations and decisions of Human Rights Tribunals in Canada. We reviewed human rights cases reported in the Canadian Human Rights Reporter from 1980 to 2003. All cases involving charges of discrimination alleged to have occurred during a face-to-face employment interview were included for analysis (N = 75). Findings suggest that while tribunals give great importance to the standardization of the entire interview process across all candidates, they largely neglect the importance of job analysis as the foundation for job descriptions and interview questions.

Résumé

Dans cette étude, nous examinons les cas de violation aux droits de la personne publiés entre 1980 et 2003 dans la revue Canadian Human Rights Reporter. Nous analysons plus précisément les cas relatifs aux plaintes pour discrimination (N = 75) enregistrés lors des entrevues d’emploi directes. L’objet de l’étude est de déterminer jusqu’à quel point les contributions contenues dans la littérature savante sur les entrevues d’emploi sont prises en compte dans les délibérations et les décisions des tribunaux canadiens des droits de la personne. L’étude montre que bien que les tribunaux accordent une grande importance à la standardisation de tout le processus de l’entrevue, ils nous-estiment grandement le rôle que l’analyse de l’emploi peut jouer dans la description des postes et les questions d’entrevue.

The interview is the most frequently used selection device (Catano, Cronshaw, Wiesner, Hackett, & Methot, 2001; Gatewood & Feild, 1998) and is often given the most weight in hiring decisions (Kinicki, Lockwood, Horn, & Griffeth, 1990). There is now general agreement among experts in the field that “structured” interviews are preferable to unstructured interviews because of their superior reliability and validity in predicting job performance (Arvey & Campion, 1982; Campion, Palmer, & Campion, 1997; Con way, Jaco, & Goodman, 1995; Harris, 1989; Huffcut & Woehr, 1999; McDaniel, Whetzel, Schmidt, & Maurer, 1994; Webster, 1982; Wiesner & Cronshaw, 1988). Moreover, a review of U.S. jurisprudence involving the employment interview has shown that structured interviews hold up better to legal challenge than do unstructured interviews (Williamson, Campion, Malos, Roehling, & Campion, 1997). This is likely attributable to the heightened objectivity, standardization, and job relatedness associated with structured interviews (Campion, Pursell, & Brown, 1988; Pursell, Campion, & Gaylord, 1980).

Canadian legislation on the use of selection assessments is similar to the corresponding American legislation (Uniform Guidelines on Employee Selection Procedure, 1978). The Human Rights Codes of the various jurisdictions1 throughout Canada specify that no employer may discriminate, in hiring or in terms and conditions of employment, on the basis of race, colour, religion, creed, age, sex (including pregnancy and childbirth), marital status, and physical/mental disability. Additionally, the majority of jurisdictions have legislated sexual orientation, national or ethnic origin, family status, dependence on alcohol or drug, ancestry or place of origin, and political belief as prohibited grounds of discrimination. It is clear that all Canadian employers must comply with the law in these areas. Although there is evidence of structured selection interviews withstanding legal challenge in the United States (Williamson et al., 1997), we know little about the extent to which Canadian Human Rights Tribunals consider interview structure in cases involving alleged unfair discrimination in employment interviewing. We expected that Canadian Human Rights Boards and Tribunals would favour structured over unstructured employment interviewing, a sentiment captured in a quote from the Tribunal Chair in the case of Abouchar v. Toronto (Metro) School Board (1998):

The fact that the [interview] competition left considerable room for improvement is relevant in that it may have made it easier for the process to be tainted by any biases held by the members of the interview committee (para. 82).

As defined by Campion et al. (1997), structure involves enhancements to the interview intended to increase its psychometric properties (i.e., reliability and validity) through standardization, directing interviewers on what questions to ask and how to score responses. Campion et al. identified 15 components of interview structure, suggesting the most important to include: deriving interview questions from a job analysis; asking very specific questions (especially those that target observable behaviour); standardizing questions and the scoring process across all candidates; and providing interviewers with interview training. Validity generalization studies of the selection interview lend support to the importance of these components of structure (Conway et al, 1995; Huffcutt & Woehr, 1999; McDaniel et al., 1994; Wiesner & Cronshaw, 1988).

Since 1980, Canadian Human Rights Tribunals have made significant comments on various aspects of employment interviewing, yet Cronshaw (1989) is the only review of jurisprudence in this area. His review covered the period from 1980 to 1988 and found that boards and tribunals, as well as complainants, did not agree on criteria for evaluating the adequacy of employment interviews. He also concluded that boards and tribunals in Canada have been willing to accept legal evidence, other than formal validation studies, as sufficient to establish the jobrelatedness of the employment interview. Specifically, validation in conformance with existing professional guidelines (i.e., Standards for Educational and Psychological Testing, 1999) was viewed as sufficient but not necessary for establishing the job-relatedness of employment interviews or other non-test selection predictors.

Hackett, Rose, and Pyper (2000) reviewed all the job competition cases reported in Labour Arbitration cases and Canadian Labour Arbitration Summaries from 1987 to May 1996, representing a total of 56 grievances, of which 26 were allowed. They found that the more the interview was structured, the more likely it was to have withstood arbitral review. Interviews judged as lacking included questions that did not reflect posted job descriptions or actual job content, and/or questions that had not been quantitatively weighted in accordance with skill requirements. Hackett et al. found that a standard interview format (candidates treated the same way, and asked the same set of questions) had been used in 75% of the 56 cases they reviewed, and that there was a strong positive association between presence of interview standardization and the arbitrator’s assessment of the interview as “fair”. In 81 % of the cases in which the interview was judged fair, the grievance was dismissed.

Hackett et al. (2000) also found that while arbitrators looked for uniformity of treatment of interviewees and whether interview questions reflected position requirements as described in job descriptions, they gave little attention to the validity of the job descriptions themselves (i.e., whether these descriptions were based on a systematic and comprehensive job analysis). Overall, their study showed that, for the most part, interview practices followed professional guidelines, except little attention had been given to the credibility of job descriptions from which the interview questions were developed. Whereas Hackett et al. reviewed Canadian labour arbitration cases, our review focused on Canadian human rights cases in which the interview figured prominently.

Board, tribunal, and court decisions convey expectations of what is legally expected of employers conducting employment interviews. Our paper updates the jurisprudence on employment interviewing since Cronshaw (1989). It provides insights into the extent to which the academic literature on employment interviewing is represented in courts of law, and illustrates what human rights boards, tribunals, and the courts consider important features of a legally defensible employment interview.

Scope of Review

Our database for this study was the Canadian Human Rights Reporter (CHRR), a privately owned update service that has published all Canadian Human Rights decisions from federal and provincial jurisdictions since 1980. We searched the CHRR’s electronic database spanning 1980-2003, using the search terms “interview”, “employment”, “ratings”, “validity”, “selection”, and “fairness.” We then consulted one another in the classification, sorting, and interpretation of the identified cases. We found 75 cases in which the process and/or outcome of a face-to-face employment interview was a key factor in the complaint.

The numbers of cases broken down by year and by alleged basis for discrimination are shown in the Appendix. Tribunals ruled in favour of the respondent in 34 (45%) of the cases. The Appendix shows that the most frequent basis for discrimination was sex (26), followed by race (25). Allegations of discrimination on the basis of age and physical disability were less frequent (10 and 12 cases respectively), followed by family or marital status (3 cases), religion (1 case), criminal record (2 cases) and sexual orientation (1 case). After regressing the total number of cases reported in a given year onto a time variable (the years 1980 to 2003), we found evidence of a significant trend wherein the total number of cases reported per year declined over time (R^sup 2^ = .21, p

Structure of Review

In order to examine the extent to which human rights tribunals have given attention to interview structure, we identified in each case whether the following components of structure were discussed: (a) whether a job analysis had been conducted; (b) the standardization of the interview process (e.g., questions asked, rating scheme used) across all applicants; (c) the use of behavioural questions (e.g., situational interview questions; Latham, Saari, Pursell, & Campion, 1980); (d) the provision of interviewer training; (e) interviewer note-taking; and (f) the use of panel (multiple interviewer) interviews.

The first four components are those that have garnered the most empirical support in validity generalization studies (Conway et al., 1995; Huffcutt & Woehr, 1999; McDaniel et al., 1994; Wiesner & Cronshaw, 1988) and were identified by Campion et al. (1997) as important components of interview structure. These four components are believed to reduce the likelihood that interviewer bias would hinder the interview process and/or outcome (Dipboye, 1992, 1994; Kesselman & Lopez, 1979; Pulakos & Schmitt, 1995).

Although validity generalization results on interview note-taking remain unclear (Huffcutt & Woehr, 1999), Middendorf and Macan (2002) found that note-taking improved recall accuracy and that reviewing notes increased judgment accuracy. They recommended note-taking, at least as a means of defence against charges of illegal discrimination. Moreover, a significant number of human rights cases mentioned interviewer note-taking. For these reasons, we included this component in our review.

Although Campion et al. (1997) recommended the use of panel interviews over one-on-one interviews, validity generalization results addressing the supposed superiority of panel interviews have been mixed (Huffcutt & Woehr, 1999; McDaniel et al., 1994; Wiesner & Cronshaw, 1988). However, because Canadian Human Rights Tribunals have often mentioned the use of panels in their deliberations, we chose to include this component of structure in our review.

Human Rights: Employment Discrimination

To appreciate how the Canadian legal system views the employment interview, it is necessary to first understand the process involved in establishing discrimination before a human rights tribunal. The Canadian Human Rights Act stipulates:

It is a discriminatory practice for an employer or an employee organization (a) to establish or pursue a policy or practice, or (b) to enter into an agreement affecting recruitment, referral, hiring, promotion, training, apprenticeship, transfer or any other matter relating to employment or prospective employment that deprives or tends to deprive an individual or a class of individuals of any employment opportunities on a prohibited ground of discrimination (Chapter H-6, section 10).

The burden of proof in discrimination cases is important, as is the order of presentation of the evidence. The complainant must first establish a prima facie case of discrimination. A prima facie case is one that covers the allegations made and which, if believed, is complete and sufficient to justify a finding in the complainant’s favour in the absence of an answer from the respondent. Once this is done, the burden of proof shifts to the employer/respondent to provide a reasonable explanation for the alleged discriminatory behaviour. If the respondent provides a reasonable explanation, the burden shifts back to the complainant to prove that this explanation was merely a pretext and that the true motivation behind the employer’s actions was in fact discriminatory (Israeli v. Canadian Human Rights Commission, 1983).

Shakes v. Rex Pak Limited (1982) describes a prima facie case as requiring proof of the following elements: (a) that the complainant was qualified for the particular employment; (b) that the complainant was not hired; and (c) that someone no better qualified but lacking the distinguishing feature that is the gravamen of the human rights complaint (i.e., race, colour, etc.) subsequently obtained the position. This multi-part test has been modified to address situations where the complainant is not hired and the respondent continues to look for suitable candidates (Israeli v. Canadian Human Rights Commission, 1983). In such cases, the establishment of a prima facie case requires proof: (a) that the complainant belongs to one of the groups protected under the Act (i.e., religious, physical disability, or racial); (b) that the complainant applied and was qualified for a job the employer wished to fill; (c) that although qualified, the complainant was rejected; and (d) that, thereafter, the employer continued to seek applicants with the complainant’s qualifications.

If the complainant is successful in establishing a prima facie case of discrimination, the respondent’s only legitimate recourse is to show that the challenged hiring standard or policy was based on a bona fide occupational requirement (BFOR). In order to establish a discriminatory policy or practice as a BFOR, the respondent must present evidence that addresses the following issues: (a) whether the standard is rationally connected to the performance of the job or service being provided; (b) whether the standard was adopted in an honest and good faith belief that it was necessary for accomplishing its purpose; and (c) whether the standard is reasonably necessary for the employer or service provider to accomplish its purpose (British Columbia [Public Service Employee Relations Commission] v. British Columbia Government and Service Employees’ Union, 1999; British Columbia [Superintendent of Motor Vehicles] v. British Columbia [Council of Human Rights], 1999).

The last point includes the requirement of demonstrating that it is not possible to accommodate individual employees without imposing undue hardship on the employer. If the respondent is able to provide evidence that addresses all three points, it is then up to the complainant to demonstrate that the alleged BFOR is simply a pretext for illegal discrimination. In other words, the complainant must convince the tribunal that the basis for discrimination is not actually a BFOR.

The adoption of a structured approach to the interview, typified by enhanced objectivity and job-relatedness, should help the respondent provide credible evidence that the complainant was less qualified than other applicants for the position. This would help refute the complainant’s evidence for a prima facie case of discrimination, providing credible evidence that interviewers were assessing BFORs and were not using pretexts to mask illegal hiring practices.

The Review

In our qualitative approach to this review, we provide case-related details that help explain how various components of interview structure influenced the tribunals’ decisions. Also, if the case descriptions give sufficient information, we explain how tribunals weighted different aspects of the interview process in rendering their decision when multiple components of structure were mentioned. The analysis of these details is instrumental in understanding why, for example, the adoption of a particular component of structure did not benefit the respondent, or why ignoring certain aspects of interview structure did not weaken the respondent’s case.

When searching the cases for reference to components of interview structure, we did not limit ourselves to the academic appellations of each component. For example, in reference to job analysis, we did not restrict our search to the term “job analysis” per se. Rather, we searched for passages where the process used to identify the duties and responsibilities of the target position, as well as the knowledge, skills, and abilities (KSAs) required to carry them out, was described.

Job Analysis

Deriving interview questions from a job analysis ensures that they are job related (Williamson et al., 1997). Conducting a job analysis is a key recommendation of the United States’ Uniform Guidelines for Equal Employment Opportunity, and can help support the content validity of the interview (Arvey & Faley, 1988). Job analysis may prevent interviewers from basing questions on idiosyncratic beliefs about job requirements (Dipboye, 1994), and has been shown to reduce the likelihood of bias (Kesselman & Lopez, 1979). Current industrial psychology and human resource management textbooks discuss job analysis methods before providing descriptions of various selection tools, such as the interview, since job analysis represents the first step in ensuring the psychometric soundness of any selection process (e.g., Catano et al., 2001; Gatewood & Feild, 1998; Gomez-Mejia, Balkin, Cardy, Dimick, & Templer, 2004).

Considering the critical role of job analysis in ensuring the usefulness and fairness of the interview, it is significant that of all 75 cases we reviewed, only five (7%) referred to a job analysis having been done. Of these five cases, four were decided in favour of the respondent. In the case won by the complainant, Action travail des femmes v. Canadian National (1984), although a job analysis had been done and job descriptions written from this analysis, the information was not used throughout the organization’s various operating regions. Instead, hiring managers relied on their personal intuition when making selection decisions.

In two other cases (Lincoln v. Bay Ferries Ltd., 2002; Mbaruk v. Board of School Trustees, School District No. 36 [Surrey], 1996), the tribunal essentially conducted its own job analysis by questioning various witnesses considered knowledgeable of the target position’s knowledge, skill, and ability requirements. In both cases, the tribunal found in favour of the respondent. Although the decision of these tribunals to collect their own job analysis information is commendable, it is far from being representative of most tribunals’ thinking with respect to the value of job analysis information.

Job descriptions should reflect the results of a thorough job analysis. However, job descriptions are often created in the absence of job analysis data. Thirteen cases (18%) made explicit reference to a job description or to a set of KSAs; however, none of these cases described a job analysis or the process by which the job description or KSAs were derived. Seven of these 13 cases (54%) were decided in favour of the respondent. A review of the deliberations in these seven cases suggests that tribunals accepted the job descriptions and KSAs at face value in evaluating the legitimacy of a prima facie case of discrimination. In one such case (Boyce v. New Westminster [City], 1994), the complainant successfully made a prima facie case, but the respondent justified use of the selection criteria as a BFOR on the basis of a job description alone. There was no questioning of the credibility of the job description, or the process by which it was derived.

As another example, in Desroches v. Midland [Town] (1988), Ms. Desroches alleged that she was discriminated against on the basis of her sex when she was refused the position of Traffic By-Law Officer. The town had agreed to appoint her to that position unless a more qualified candidate was found. The town then hired a consultant to assist with the hiring process. The consultant required all candidates to take a battery of psychological tests. On the basis of these tests, another candidate was deemed to be better qualified than Ms. Desroches and was offered the position. In rendering its decision, the tribunal relied heavily on the ranking of candidates. Ranking was done on a number of criteria, all of which had been developed on the basis of the job description. Yet the credibility of the job description, or the job analysis from which the description was developed, was not discussed. The only comment in this regard was that of the Tribunal Chair who indicated that the job description was “created by members of the parking authority to describe attributes which a candidate would need if that candidate were to carry out the duties” (para. 36929). The tribunal was satisfied that the interview was conducted in accordance with the standards of the consultant’s profession (psychologist) and adhered to the standards of professional conduct set out by the Ontario Board of Examiners in Psychology.

Six of the 13 cases (46%) that mentioned a job description or KSAs were decided in favour of the complainant. In one of these cases (Gauvreau v. National Bank of Canada, 1992), it was clearly shown that while the head of the department in which the complainant wanted to work felt the complainant was the best candidate for the job, the senior officers making the selection decision were biased against the complainant because of his physical disability. In another case (Abouchar v. Toronto [Metro] School Board, 1998), although a job description existed at the time of the interview, it had not been given to the selection committee to use as a guide. In two cases (McAvinn v. Strait Crossing Bridge Ltd., 2001; Paisley v. Newhaven Construction & Morrison, 1999), decisions were based on the interviewer(s) having made sexist comments toward the complainant during the interview. Similarly, in Premakumar v. Air Canada (2002), disrespectful comments toward the complainant were found among the interview notes submitted for evidence. Overall, these findings suggest that while a job description is critically important in mounting a successful defense against alleged employment discrimination, it is insufficient.

In only one case did the tribunal question the job relatedness of the KSAs described by the respondent (Grewal v. Fletcher Challenge Canada Ltd., 1991). Although the respondent argued that an ability to speak English was necessary for the job, the tribunal found that English was not a bona fide requirement. Had a job analysis been done, perhaps the ability to speak English would not have been included among the KSAs and the complaint would have been avoided.

Standardization

Standardizing the interview process can reduce bias because it provides a structure, process, and guidelines for treating all candidates uniformly, granting all candidates equal opportunity to present their qualifications (Dipboye, 1994; Dipboye & Gaugler, 1993; Williamson et al., 1997). However, our review showed that respondents who had followed a standardized process during the interview (i.e., standard interview protocol) sometimes did not use a standardized candidate rating process. Accordingly, we divided this section into two parts: use of a standardized interview protocol, and the use of a standardized candidate rating procedure.

Use of standardized interview protocol. In 27 cases (36%) standardization (or lack thereof) during the interview was mentioned. Reference to interview standardization typically addressed whether the same questions were asked of all candidates. To a lesser extent, it addressed consistency in other aspects of the interview, such as whether the same number of interviewers assessed each candidate (McAra v. Motor Coach Industries Ltd., 1988) or whether all candidates were given the same number of interviews (Toronto [City] Board of Education v. Quereshi and the Ontario Human Rights Commission, 1991). Even when the employment interview was seriously flawed, if all applicants had been treated the same way during the interview (e.g., asked exactly the same questions), the tribunals usually decided for the employer unless there were mitigating circumstances. In 16 (59%) of the 27 cases, employers implemented a standardized process during the interview and had followed that process consistently across all candidates. The tribunal decided in favour of the respondent in 13 (81%) of these 16 cases.

With respect to two of the three cases decided in favour of the complainant, in one case the interviewers asked illegal questions (Lannin v. Ontario [Ministry of the Solicitor General], 1993) and in the other remarks disrespectful of the complainant were found in the interview notes (Premakumar v. Air Canada, 2002). Clearly, evidence of direct discrimination supersedes issues of interview standardization in decisions of tribunals and courts. In the third case decided in favour of the complainant (Abouchar v. Toronto [Metro] School Board, 1998), the panel Chair neglected to share with the interview panel a detailed job description for the target position. Moreover, evidence was presented to suggest that the panel members were predisposed against supporting the complainant’s candidacy for the position based on his place of origin. In combination, these observations influenced the Tribunal’s ruling in favour of the complainant. The Tribunal stated that a more rigorous (structured) interview process would have been preferable given the interviewers’ preconceptions about the complainant.

Variation from a standardized interview protocol may cost respondents their case. Six of the 27 cases (22%) in which interview standardization was discussed involved organizations that had strayed from the standard interview procedures they had developed. All were decided in favour of the complainant. In Hartling v. Timmins Board of Police Commissioners (1981), Ms. Hartling applied for the position of police officer, a job for which she was well qualified. The interviewer varied from normal procedures by not stating the qualifications required for the job. Moreover, he noted that the police force could not afford to add an extra washroom that would be necessary should the force hire a female. The interviewer deviated from standard practice by criticizing Ms. Hartling’s spelling. Poor spelling was later given as the reason for Ms. Hartling’s rejection. Although other factors played out in the case, the variation from the standard interview process figured prominently in the decision. In addition to $3,000 in general damages awarded to Ms. Hartling, the police department was ordered to allow her to write the preliminary examination. If she passed this exam she was to be interviewed. If she passed the interview, she was to be offered the first available position as a police officer.

In five of the 27 cases in which interview standardization was discussed, respondent organizations did not have a standard interview process. Three of these were decided in favour of the complainant. In one of the two cases that decided in favour of the respondent (Fiech v. Memorial University of Newfoundland, 2001), the complainant was deemed less qualified than the other applicants. In the second of these cases decided in support of the respondent (Stadnyk v. Canada Employment and Immigration Commission, 1995), the tribunal accepted the argument of an alleged conflict of interest between the complainant and the employer.

Use of standardized candidate rating procedure. The rating process is standardized to the extent that interviewers use the same evaluation criteria and rating format when evaluating each candidate. Interview rating schemes were discussed in 21 (28%) of the 75 cases we reviewed. Further, in 12 of these cases, it was determined that the organization had a standardized rating scheme in place and applied it consistently across candidates. The tribunal ruled in favour of the respondent in all these cases. However, in Malik v. Government Services et al. (1981), wherein the complainant alleged systemic (indirect) discrimination, the respondent won the case, not because the candidate rating process had been used consistently, but because the characteristics of the group allegedly being discriminated against were said to be too ill-defined to support an accusation of indirect discrimination.

In three other cases, although the respondent had developed a standardized rating system, the interviewers deviated from this system. The complainants won in two of the three cases (Chander & Joshi v. Department of National Health and Welfare, 1995; Kickham v. City of Charlottetown, 1986). For example, in Kickham v. City of Charlottetown, the interviewers did not follow the standard rating scheme. The female complainant was rated lower than other applicants, all male, who were deemed less qualified by the tribunal. In Persad v. Sudbury Regional Police Force [No. 2] (1994), although deviating from established standard rating processes, the respondent still won the case. Here, the complainant alleged discrimination based on race, ancestry, colour, and age when he was refused employment as a police officer in 1987. The police department had varied from set procedure to give Mr. Persad every opportunity to succeed in the hiring process. During the face-to-face interview it was normally necessary to obtain a score of 630 points out of 900 in order to proceed. Mr. Persad was allowed to go on with 566 points. He passed the physical, medical, and psychological tests and was assessed in a final interview before a three-member panel. To pass the interview, he required a score of 75% or better, which he did not achieve. The tribunal found that the five applicants who were hired were better qualified than Mr. Persad.

In six of the 21 cases where rating schemes were discussed, a standardized rating process had not been used. Five of these six cases were decided in favour of the complainant. In the remaining case (Stadnyk v. Canada Employment and Immigration Commission, 1995), the tribunal ruled that a conflict of interest between the complainant and the employer justified the employer’s decision to not hire the complainant.

Overall, our findings on the use of a standardized interview protocol and scoring process suggest that tribunals give considerable importance to the consistency of treatment across candidates. Deviations from standard practice appear to go a long way to substantiating allegations of illegal discrimination.

Use of Behavioural Interview Questions

Williamson et al. (1997) suggest that questions targeting candidate behaviours reduce interviewer bias by minimizing ambiguity and subjectivity in employment decisions. Two types of behavioural interviews have been widely researched: situational interviews and behaviour description interviews. The first asks interviewees what they would do in a hypothetical situation that reflects a situation they are likely to face in the target position (Latham et al., 1980). The second asks interviewees to describe how they actually behaved in past situations that are similar to situations they are likely to encounter in the target position (Janz, 1982). Situational interview questions often begin with “What would you do if…” or “How would you….” Questions addressing past behaviour often begin with “What did you do when…” or “Please describe a time when you….” Although scores from both types of behavioural interviews predict job performance, the superiority of one over the other has yet to be clearly established (cf. Campion et al., 1997).

We identified nine cases (12%) that referenced behavioural interview questions, five of which were won by the respondent. The details of some of these cases provide insights into the reasons for the tribunal decisions.

In Premakumar v. Air Canada (2002), though the behavioural description interview was used, the decision favoured the complainant because comments disrespectful of the complainant were found in the interviewer’s notes. In two other cases, although some of the questions asked were situational in nature, the interviewer used them in a clearly discriminatory fashion. In Suchit v. Sisters of St. Joseph’s for the Diocese of Toronto (1983), the complainant, a black man, testified that the interviewer asked: “Mr. Suchit, how would you deal with staff; i.e., if there was any disciplinary actions to be taken, and the reason why I am asking this question Mr. Suchit is the fact that we have had occasions at the hospital where white supervisors have had difficulty dealing with minority groups, particularly black, in that if they were hauled on the carpet, like any disciplinary action, the remarks that were made were, Oh, because I am black, I am being picked on’ …” (para. 11514). While this is a situational question, it was only asked of the complainant, not of white applicants. The complainant won the case. Similarly, in Downey v. Metropolitan Transit Commission (1991), the interviewer, at the start of the interview, stated that the complainant might be “one of the little black bastards” that threw snowballs at him, and asked the complainant what his response would be if someone got on the bus and called him a “black bastard.” Although this question is situational, the transparent racism resulted in a decision against the respondent.

Dhami v. Canada (Employment and Immigration Commission) (1990) provides an exemplar situational question targeted directly at job-relevant knowledge. In this case, interviewers required a

[…] written or verbal response by the candidate to a fairly simple reconciliation of bank statement to cash account. The answer to this question is considered critical, since the position involves ability to perform reconciliations, (para. 32)

Folch v. Canadian Airlines International (1992) provides another good example of the use of situational interviewing. In this case, the interview panel asked candidates what they would do in hypothetical operating emergencies that may occur while flying an aircraft. Tribunal decisions favoured the respondent in both the above cases.

In Belyea v. Canada (Statistics Canada) (1990), the ruling was in favour of the respondent, not because the interviewer used situational interview questions, but because the complainant did not have a car, which was deemed a legitimate job requirement.

Although the case of Malik v. Ministry of Government Services et al. (1981) made no reference to behavioural questions per se, it offers examples of questions that do not assess candidates’ job-relevant behaviours. Main questions the interview panel asked were: (a) “Describe the important aspects of the position you seek”; (b) “What is the expectation of an employer and an employee in a hiring situation?”; (c) “What are your career goals?”; (d) “How many times are you late in a month?” (e) “What is your attitude to your coffee break and extended lunches?”; (f) “Do you have any suggestions for improvement in the way the job is done?” According to the Tribunal Chair, the recruitment officer working for the respondent

admitted […J that the three interviewers might well have devised better questions, but that they simply didn’t. The fact that all applicants had prior on-the-job experience makes more clear the availability, in this case, of an alternative method of assessment, (para. 3384)

Indeed, given the existence of prior work experience, behavioural questions targeting those specific past experiences would have been preferable to those used in this case.

Overall, our findings suggest that tribunals view behavioural questions favourably, but use of this technique by employers would not outweigh evidence of the interviewer having treated the complainant differently from other candidates, particularly when interviewers make overt discriminatory comments to the interviewee.

Interviewer Training

Providing interviewer training is effective in reducing bias in the interview process and outcomes (Campion et al., 1997). Among the 75 cases we reviewed, seven (9%) made reference to interviewer training directly and in some detail. In these cases, interviewers did not receive training or guidance on how to conduct an interview. In four of these cases, interviewers asked inappropriate questions or made inappropriate remarks, such as asking the applicant’s age and family status (Lannin v. Ontario Ministry of the Solicitor General, 1993) or telling a black applicant “you might be one of the little black bastards that threw snowballs at me” (Downey v. Metropolitan Transit Commission, 1991). Six of the seven cases were decided for the complainant, suggesting that tribunals frown upon the use of untrained interviewers, or that untrained interviewers are more likely to make inappropriate comments and to ask illegal questions. However, because only 9% of the cases we identified made any reference to interviewer training, it appears that, overall, tribunals give relatively little importance to this component of structure. Perhaps interviewer training becomes an issue only when blatantly inappropriate remarks are made, or clearly illegal questions are asked.

Bhadauria v. Toronto (City) Board of Education (1990) was the only case in which the absence of direct interviewer training was noted, but the decision favoured the respondent. Systemic discrimination was alleged. The Chairperson commented that while the interview committee would have benefited from cross-cultural sensitivity training, seniority and experience of the interviewers was a proxy for such training (the panel was made up entirely of Area Superintendents and chaired by the Superintendent of Personnel). The respondent had argued that the panel interviewers were unified in their understanding of what criteria to use and how to apply them, despite not having received any formal training. Moreover, the tribunal commented that any lack of formalized training affected all applicants equally, and did not result in discrimination specifically against South Asians, as the complainant had alleged. The case was dismissed because the complainant did not make a prima facie case of systemic discrimination.

Eleven other cases involved the use of illegal or inappropriate comments or questions during the interview, although they did not explicitly mention interviewer training per se. Most Human Rights Codes of the various jurisdictions throughout Canada clearly indicate that it is illegal to ask questions regarding a number of demographic factors such as age, sex, disability, or race. Yet, it is apparent from the complaints that some employers are not training their interviewers to avoid making illegal comments or asking illegal questions. Tribunals appear to view such comments seriously since all 11 cases were decided for the complainant.

Tribunals can decide in favour of the complainant when illegal questions or comments are used in the interview regardless of whether the hiring decision was actually made on prohibited grounds (e.g., Abouchar v. Toronto [Metro] School Board, 1998). The most common interviewer faux pas was to say that there are no jobs for women (Bruce v. Davies, 1988; Cinkus v. Diamond Restaurant and Tavern et al., 1981; Dubniczky and Proulx v. Tiffany’s Restaurant, 1981; Hartling v. Timmins Board of Police Commissioners, 1981; Kickham v. City of Charlottetown, 1986). However, interviewers have also made inappropriate comments about family status (Niedziewcki v. Beneficial Finance System, 1982), age (Engel v. Keg Restaurants, 1987; Lannin v. Ontario Ministry of the Solicitor General, 1993; Ridlon v. Tanro Holdings Ltd., 1987), physical disability (Bruce v. Davies, 1988; Davison v. St. Paul Lutheran Home of Melville, Sask., 1992), and colour (Downey v. Metropolitan Transit Commission, 1991).

Interviewer Note-Taking

As discussed earlier, meta-analyses have yet to clarify the effect of interviewer note-taking on the psychometrics of the interview. Twenty-one cases (28%) mentioned whether interviewers had taken notes during the interview. Of the 11 cases ruling in favour of the respondent, interview notes had been taken. Of the 10 cases with decisions favouring the complainant, interview notes had been taken in five. Together, these figures do not show clearly whether note-taking by itself can truly benefit the respondent. In fact, in three cases, interviewer notes were used against the respondent. In Premakumar v. Air Canada (2002), one interviewer’s notes included disrespectful comments toward the complainant, strengthening the complainant’s arguments for a prima facie case. Similarly, in Niedziewcki v. Beneficial Finance System (1982), the interviewer had written extensive notes on his opinion of the applicant’s marital status. The tribunal regarded one note, “definitely looking for a person who is single – easily transferable”, as concrete evidence that Mrs. Niedziewcki, a married woman, was discriminated against based on her marital status. Finally, in McCreary v. Greyhound Lines of Canada Ltd. (1984), the interviewer wrote “2 years too old” on the 37-year-old candidate’s application form, a fact that figured prominently in the decision favouring the complainant. If interviewer notes are to be of any benefit to the respondent, they should be taken in the context of a structured interview format, and with sensitivity to legally inappropriate remarks.

Neglecting to take notes during the interview may weaken the respondent’s credibility before the tribunal. In Lindahl v. AuId Philips Ltd. (1986), two interviewers interviewed the complainant in sequence, with neither having kept notes. The interviewers appeared very confused in their recall of events and one in particular “hid behind his poor memory” (para. 27121). The complainant was clear and forthright in her testimony, and as a result, was deemed more credible. The complainant won the case.

Finally, notes taken in retrospect that favour one party tend to be viewed by adjudicating bodies as self-serving, thereby carrying little weight other than to undermine the respondent’s credibility. Such was the case with Gauvreau v. National Bank of Canada (1992), where the interviewer added notes after the complainant had been rejected. The tribunal found that the notes were a “self-serving instrument” (para. 143) and appeared to be “a case of too much selective forgetfulness” (para. 143).

One-on-One versus Panel Interviews

Campion et al. (1997) advocate for multiple interviewers (panels). Their reasons include: shared perceptions make irrelevant inferences more salient (Arvey & Campion, 1982); multiple interviewers may reduce the impact of idiosyncratic biases (Campion et al., 1988; Hakel, 1982); aggregating multiple judgments neutralizes random errors (Dipboye, 1992); and information recall improves with multiple interviewers (Stasser & Titus, 1987). However, mixed findings of validity generalization studies on the advantages of multiple interviewers over one-on-one interviews suggest that such claims have yet to receive clear empirical support (Huffcutt & Woehr, 1999; McDaniel et al., 1994; Wiesner & Cronshaw, 1988).

Thirty-three cases (44%) raised the issue of panel versus one-on-one interviews. In 26 of these cases (79%) a panel had been used, and the tribunal decided in favour of the respondent in 16 (62%) of these cases. Of the seven cases in which panels were not used, four were decided in favour of the respondent. These findings do not clearly establish whether the use of interview panels directly influences decisions of tribunals. The tribunals, in rendering their decisions, considered other factors. For example, in Ross v. Gendall (1988), the decision in favour of the complainant was not premised on the interview having been one-on-one, but rather on the interviewer having made sexual comments during the interview. Similarly, in Bourrier v. Phil-Can Services Ltd. (1999), evidence of the interviewer having sexually harassed the complainant figured prominently in the decision favouring the complainant. The outcomes of these cases suggest that tribunals give more weight to credible evidence of obvious direct discrimination than to less salient details such as the use of a single interviewer versus panel interviews. Still, inappropriate interviewer comments in the two cases discussed above may have been prevented had other interviewers been present.

In some cases involving panel interviews, the respondent lost the case because interviewers had treated the complainant differently than other candidates (Action travail des femmes v. Canadian National, 1984; McAra v. Motor Coach Industries Ltd., 1988; McAvin v. Strait Crossing Bridge Ltd., 2001; Suchit v. Sisters of St. Joseph’s for the Diocese of Toronto, 1983). For example, in Suchit v. Sisters of St. Joseph’s for the Diocese of Toronto and McAra v. Motor Coach Industries Ltd., the companies normally employed a panel but reverted to a single interviewer in the case of their respective complainants. In Grewal v. Fletcher Challenge Canada Ltd. (1991), the decision favoured the complainant because the KSAs described by the respondent did not reflect BFORs. Finally, In Quereshi v. Central High School of Commerce (No. 3) (1990), the ruling favoured the complainant largely because a lack of interviewer training resulted in a haphazard approach to interviewing and rating candidates. The complainant’s arguments were strengthened by evidence presented that the vice-principal chose a candidate on “gut feeling”, overruling the panel’s preference for the complainant. Together, these findings suggest that panel interviews do little to offset the negative ramifications of using non-uniform interviewing procedures across candidates or of using poorly justified selection criteria.

Summary and Conclusions

While Cronshaw (1989) reported little agreement among Human Rights Boards and Tribunals in the relative importance of criteria used in judging the fairness of the employment interview, we found a pattern. Specifically, there is a fairly strong link between interview standardization and decisions favourable to the respondent. In the 16 cases where a standardized interview script had been consistently applied, decisions favoured the respondent 81% of the time (13 cases). In the remaining cases, other evidence of direct discrimination against the complainant had been accepted. Moreover, in all 12 cases in which a standard scoring scheme was applied consistently across candidates, the decision favoured the respondent. In the six cases where interviewers strayed from an established standardized interview process, the decision favoured the complainant. Similarly, in two of the three cases where interviewers strayed from using a standard scoring scheme, the decision favoured the complainant. These findings are consistent with Williamson et al.’s (1997) review of U.S. court decisions involving alleged discrimination in employment interviewing. Specifically, they showed that decisions favourable to the defendant (respondent) were positively related to the standardization of the interview.

In Hackett et al.’s (2000) review of 56 Canadian labour arbitration grievances involving the selection interview, a standard interview script had been used in 75% of these cases. In contrast, a standard interview script had been used in only 21 % ( 16 of 75) of the Canadian human rights cases reviewed here. While Hackett et al. reported panel interviews having been used in 93% of the cases coming before arbitrators, a panel interview was used in 35% of human rights cases we reviewed. In 50% of the arbitration cases reviewed by Hackett et al., selection criteria were clearly related to requirements as specified in a job description. We found that only 18% of the human rights cases in our review made reference to linking interview questions with a job description. Hackett et al. also noted a significant prevalence of the use of scoring keys developed prior to interviewing (29%), and a weighting of interview questions for their job relevance (46%). These issues were seldom discussed in the human rights cases we reviewed. Perhaps arbitrators hold the interview to a higher standard than do Canadian Human Rights Tribunals and courts. Employers in unionized environments may take special care to ensure that their selection interviews meet legal and professional standards, given their accountability to the union. Moreover, joint union-management involvement in setting procedures of fairness and objectivity for internal competitions may add additional rigour.

Little attention had been given to the validity of job descriptions from which interview questions are to be derived. Tribunals generally accepted job descriptions at face value without probing into whether they were systematically and comprehensively developed. This is a problem in that the integrity of the job description is central to determining whether selection criteria assessed in the interview reflect bona fide occupational requirements. Our findings are consistent with Hackett et al.’s (2000) review of Canadian arbitration cases. Seldom did arbitrators question the validity of the job descriptions, focusing instead on whether the interview questions were true to the job description. Additionally, our findings suggest that tribunals give relatively little importance to interviewer training. Together, these findings suggest that practitioners, scholars, and expert witnesses must do a better job educating Canadian Human Rights Tribunals on the importance of job analyses in deriving interview questions, and interviewer training.

Direct discrimination, such as asking illegal questions or making derogatory or sexist remarks, overrides any influence of interview structure in decisions of Canadian Human Rights Tribunals. This can be expected, in that the role of the tribunal is to ascertain whether illegal discrimination took place, not to evaluate the predictive validity of the interview per se. Familiarizing interviewers with the legal guidelines on employment interviewing, and training them to conduct the interview in a standardized uniform manner, are likely to significantly deflect discrimination complaints and strengthen the defence of employers when legally challenged. While interviewers can use notes as a means of enhancing the perceived structure of the interview (Middendorf & Macan, 2002), these notes can also be incriminating where they make reference to non job-relevant qualities of the candidate. Finally, we found that the use of interview panels did not figure prominently in the decision outcomes of Canadian tribunals and courts.

Implications

Interviewers should receive training on the types of questions that should and should not be asked of job candidates, and on the importance of standardizing the entire interview process across all candidates. Of course, such training may do little to offset some managers’ conscious motivation to unfairly discriminate. The serious potential negative consequences of illegal employment discrimination for the job candidate, and for the employer, must be made clear to selection interviewers to help curb such motives. Human Rights Tribunals also need to be better informed of the role of job analysis in developing interview questions. This understanding is critical to making informed judgments on whether a strong argument has been made for a prima facie case of discrimination and/or a BFOR.

Limitations

As with all qualitative reviews, subjectivity enters into interpretations, even though the authors each independently reviewed all cases and consulted each other to ensure consistency in interpretation. Although a quantitative review may have been more desirable, this was not possible with the small number of cases in which a common set of interview structure components was discussed. Our qualitative approach did not enable us to assess the unique effects of a single component of interview structure while controlling for the effects of all other components. It is possible that components of interview structure co-vary, blurring the unique importance adjudicating bodies assign to each component when rendering their decisions. Still, our review did not uncover any obvious dependencies among the six components of structure we considered. Of course, statistical weights are unlikely to capture the full complexity of the factors influencing adjudications, such as overt discriminatory remarks or notes overriding interview structure. The advantage of a qualitative review is that these nuances can be captured.

The goal of this study was to examine the extent to which best practices for employment interviewing, as recommended by scholars in this field of research, are used by Canadian Human Rights Tribunals in their deliberations and decisions on cases involving the employment interview. Our results should be of considerable use to managers who wish to avoid accusations of illegal discrimination, Tribunal Chairs who wish to render as fair a decision as possible, as well as human resource management and labour law scholars interested in how the Canadian legal system interprets and applies findings from the scholarly literature on employment interviewing.

Notes

1 There are 14 jurisdictions in Canada. Each of the 10 provinces, the federal jurisdiction, and three territories has separate human rights and labour standards laws as well as separate commissions (and courts) to enforce them. The federal jurisdiction applies to approximately 10% of the Canadian workforce: those people who work for interprovincial and international railways; highway transport; telephone, telegraph, and cable systems; pipelines; ferries, tunnels, bridges, and shipping; radio and television broadcasting (including cablevision); air transport and airports; banks; grain elevators; flour and feed mills; and certain Crown corporations (Stone & Meltz, 1993). An establishment is deemed to be under only one jurisdiction.

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Rick D. Hackett

McMaster University

Laurent M. Lapierre

University of Ottawa

Helen P. Gardiner

University of Calgary

This research was supported by a grant to the first author from the Social Sciences and Humanities Research Council of Canada (#410-2004-0735). We thank Greg Sears for his assistance in compiling the cases for this review.

Address correspondence to Rick D. Hackett, DeGroote School of Business, McMaster University, 1280 Main St. West, Hamilton, ON, Canada L8S 4M4. E-mail: hackett@mcmaster.ca

Copyright Administrative Sciences Association of Canada Sep 2004

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