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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Upon first thought, employers may not be sure what to do when a prospective employer calls asking for a reference on a former employee.

Is it safe to provide a reference when a prospective employer is conducting a background check on your former employee?

Is it worth providing a negative reference given the privacy, defamation or discrimination issues that could arise? What if the former employer provides a “false positive” reference, and the prospective employer hires the person and later feels that it was harmed by the former employer’s failure to provide a truthful reference? Is it dangerous to not be completely truthful about a former violent or drug-addicted employee? Is it unfair to provide neutral information when a high-performing former employee might deserve a glowing reference?

With all these questions, it’s easy to see why employers might hesitate to provide a complete performance-based reference for a former employee, and may instead stick to providing neutral references discussing the former employee’s name, positions held and dates of employment.

Similarly, it’s not difficult to see why prospective employers might wonder about what to ask and what not to ask a former employer about a job candidate during a background check, and the issues that could arise from asking for certain kinds of information about the person.

I recently read a case where a prospective employee interviewed with an employer, and was offered a job conditional on his providing adequate references. The employer called the candidate’s former employer for a reference check and learned that the prospective employee had failed some drug tests and was terminated for this reason. Shortly thereafter, the employer called the candidate back to rescind the job offer because of the failed drug tests.

The prospective employee brought an application to the Privacy Commissioner of Canada, arguing that he expected his former employer to provide information about his employment history and performance during the background check, but not the information about the drug tests. He felt that his former employer should not have provided this information since he had not signed any form that specifically authorized such a disclosure.

In this case, the Privacy Commissioner decided that the former employer could provide the information about the drug tests, and the prospective employer could receive this information, since the information was directly related to the candidate’s work history. Also, it was likely that the candidate had provided express consent to the prospective employer by signing an authorization form that allowed it to investigate his “employment and other related matters as may be necessary in arriving at a final decision” with respect to hiring him. The same authorization released previous employers from all liability in responding to inquiries and releasing information in connection with his application. Unfortunately, since the candidate was not hired, both employers discarded the forms.

The commissioner found neither employer liable in this case, but they took a chance by not keeping anything in writing.

Employers who are interested in providing performance-based references during a background check are recommended to:

• Provide information that is strictly job-related and based on reasonable evidence that is accurate and verifiable
• Respond only to the questions asked, and do not add extraneous information about the person
• Make sure that your answers relate directly to the former employee’s work history and performance (if drug test results or violent behaviour make up part of the individual’s work history and performance, the Privacy Commissioner has found that a former employer can reasonably disclose the information if asked about history and performance)
• Make sure to get a signed statement from departing employees that releases the employer from any liability for responding truthfully to questions asked during the course of giving references; explain that without the signed release, the company will provide neutral references only
• Ensure there is a particular person at the company who provides the references, who is trained and understands the importance of carefully handling reference inquiries
• Provide reference information only to prospective employers after verifying their identities, receiving their request in writing, and receiving the prospective employee’s consent to make the inquiry

On the same note, employers who are interested in requesting performance-based references during a background check are recommended to obtain a candidate’s express consent to ask his or her former employers about the applicant’s previous employment history and performance (put it right on the application form and keep copies of it), and to provide this consent to the former employer if requested.

I’m wondering: does your company have a neutral employment reference background check policy, providing only name, position held and dates of employment of former employees? Have you refused to provide a reference? Does your company use releases for parting employees limiting liability for future references provided?

Christina Catenacci
First Reference Human Resources and Compliance Assistant Editor

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