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Company ordered to pay $8,000.00 for discriminatory text messages during job application process

A company in Ottawa has just landed itself with a damage award from the Ontario Human Rights Tribunal and a lot of embarrassing media coverage in how one of its employees discriminated against a potential candidate for employment on the basis of “race, colour and ethnic origin” during a telephone job interview and subsequent texts. The case of Bouraoui v. Ottawa Valley Cleaning and Restoration, 2014 HRTO 1303 is a shocking example of discriminatory conduct on the part of an employer.

The Applicant is black and he immigrated to Canada from elsewhere. The Applicant dropped off a series of resumes at potential employers, including the Respondent. On the day in question, someone identifying himself as “Jesse” from the Respondent called the Applicant about a potential job and the call took about 90 seconds. During the call, Jesse asked the Applicant “what country he was from” and where he was “white or black”. The Applicant refused to respond and Jesse said he would let the Applicant know his decision about a job by text message.

Jesse then started the following offensive series of texts messages that are reproduced as originally written:

11:44 Jesse: Try learning English you will have better luck I don’t hire foreners I keep the white man working

12:02 Applicant: You said you keep the white man woking is abuse I will file a complaint against you about your message. I have proof

12:16 Jesse: Go ahead have fun with that you told me fy that’s what you get and I didn’t say anything that can get me in trouble you are a former and I said that I keep the white man, working so you go and waste your time and see how far this gets you they are going to laugh at you I can say what ever I want this is a very good example of why I don’t hire foreners you waste peoples time with your bull shit so please go waste your day let me know how it goes for you

The Applicant then advised Jesse that these comments were racist and he would take action. Jesse responded as follows:

13:09: Jesse: I didn’t say anything that is racist all I sad was I don’t hire foreners and I hire white men so stop texting me take it how ever you want if you text me again it will be hearasment and there is no law for what I said it’s called freedom of speech in Canada maybe you would know that if you were a Canadian good by stop wasting my time I run a business I don’t have for you get a life

13:21: Jesse: Ya and now you are harassing me so I’ll file a company to don’t text me again and you are a forener and I only hire white men how the fuck is that racist you clearly have no life stop wasting mine you clearly have no friends and if you are looking for a friend sorry I don’t want to be your friend

13:23: Jesse: And stop texting me and go file a complaint he will probably be a white man and he will probably laugh at you and tell you to go away

The Applicant filed a complaint and the Respondent did not respond or participate in the hearing.

The Tribunal found that the corporate Respondent was vicariously liable for the comments made by its Employee Jesse. The Tribunal held that Jesse violated section 5 of the Ontario Human Rights Code by discriminating against the Applicant during the job application process on the prohibited grounds of race, colour and place of origin. The Tribunal ordered the Respondent to pay $8,000.00 as damages for injury to the Applicant’s dignity and self-worth.

After the Applicant filed his Complaint, Jesse called him and told him to withdraw it or he would seek costs. The Applicant alleged this constituted a reprisal and this argument was dismissed by the Tribunal on the basis Jesse was just responding to the fact that a legal proceeding had been commenced against the Respondent.

This case is a reminder to everyone about the significance of not using discriminatory criteria in the job application or selection process. Any decision on who to hire should be supported by objective evidence not based on any prohibited grounds. Although the interaction between the Applicant and Respondent was relatively short, it still ended up costing the Respondent a significant sum of money.

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Simon Heath

Employment Lawyer and principal at Heath Law, Employment Lawyers
Simon Heath, BA, MIR, LLB, is the Principal of Heath Law, Employment Lawyers in Mississauga, Ontario. Simon represents both public and private-sector employers and employees (unionized and non-unionized) at all stages of the employment relationship with a focus in the areas of employment law, labour law and human rights law; these representations are made at all levels of courts and all administrative tribunals. Read more
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