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No age discrimination present – job applicant was simply outperformed in interviews

I read a case recently that clearly illustrates why employers should ensure that interview questions are related to the actual job responsibilities required for a job, and to remember to make and keep for a reasonable period of time interview notes that include the reasons for hiring (and not hiring) candidates.

In this case, a 64-year old occasional teacher had interviewed for several permanent contract positions with a school board. She was selected for a short list from a special list of occasional teachers compiled by the school board. Typically, the principal had the discretion to choose which candidate from the short list would be hired.

In every case, she was not hired; younger, less experienced teachers got the jobs instead.

At the Ontario Human Rights Tribunal, she argued that that the average age of teachers hired for permanent contract teaching positions was 31 years; thus, there was a bias toward hiring younger teachers. She argued that age was a factor in each of the five decisions not to hire her for permanent teaching positions. Simply put, she was a victim of age discrimination in employment.

Moreover, she claimed that in one case, a less experienced teacher who had to be restrained from assaulting a student got a job over her. Furthermore, at that school, the principal gave her a less than flattering reference letter.

The tribunal carefully examined each of the jobs for which the teacher applied. After hearing the evidence of those involved, things became much clearer; this teacher was no victim of age discrimination.

For instance, the tribunal heard testimony from the principal of the school where the teacher accused her co-worker of getting a job even though he assaulted a student, and the principal gave an unfounded negative reference that prevented her from getting another job. In truth, the co-worker had not been guilty of assault; rather, he knocked over a chair in frustration and swore at a student (and was disciplined).

Furthermore, the reference letter that the principal wrote was negative because the principal believed that the teacher had a teacher-centered style, was disorganized, did not engage with staff or students outside of the classroom, was not passionate about teaching and conducted boring classes. Essentially, based on his own observations and unsolicited comments by students, he genuinely believed that the teacher was mediocre. The principal was able to provide reasons for each of these beliefs.

The evidence showed that, in each case, there were clear reasons for not hiring the teacher for a permanent position.

Another principal felt that the teacher gave an average interview, did not have a dynamic presence, spoke in monotone and did not express excitement for the position. There was just nothing outstanding in the interview that suggested she was a strong candidate. What’s more, the reference letter mentioned above raised concerns and was unimpressive; two further references were vague but somewhat more positive.

On the other hand, the successful candidate had a better interview by far, and had “outstanding” references. In fact, one reference called the successful candidate, “the best teacher I have ever had,” and said if it were possible, he would have hired her.

It was the teacher’s teaching abilities, and not age, that were preventing her from securing a permanent position with the school board.

The tribunal was completely satisfied with the school board’s explanations and witness testimony. The tribunal also noted that it was relevant that the teachers on the list were not able to apply for permanent contract teaching positions, but were selected. The fact that the teacher was selected for interviews meant that the principals knew her age but still selected her. It was after the interview performance that the teacher was not hired. The teacher in this case was not disadvantaged by this process because of her age.

Consequently, the teacher’s claim was dismissed.

Thus, it is important to remember that if there are valid and justifiable reasons for not hiring someone that are tied to the job requirements, and this can be explained coherently (with evidence), it is not likely that the employer will be on the hook for discrimination.

Christina Catenacci
First Reference Human Resources and Compliance Editor

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Christina Catenacci

Christina Catenacci, BA, LLB, LLM, was called to the Ontario Bar in 2002 and has since been a member of the Ontario Bar Association. Christina worked as an editor with First Reference between February 2005 and August 2015, working on publications including The Human Resources Advisor (Ontario, Western and Atlantic editions), HRinfodesk discussing topics in Labour and Employment Law. Christina has decided to pursue a PhD at the University of Western Ontario beginning in the fall of 2015. Read more
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