Here are some potential nightmare scenarios:
You work with an employee through performance issues over the better part of a year, ultimately concluding that she is unlikely to bring her performance up to a reasonable level. You have decided to terminate her employment but before you get the chance, she announces that she is pregnant.
You post a job, review hundreds of resumes, select half a dozen to interview, go through several rounds of interviews, conduct background checks, choose the candidate you think is best, and then a year later, receive a Human Rights Complaint on behalf of one of the unsuccessful candidates alleging that you rejected him due to his being part of the LGBTQ+ community. You don’t even remember him, let alone why you didn’t hire him, but he alleges that you visited his FaceBook page, saw some of his pro-LGBTQ+ posts, and then decided to hire someone else.
Easy to allege discrimination
Employment Lawyers often say that the two riskiest parts of the employment relationship are the hiring stage and the dismissal. Each of these raise their own specific sets of risks, but one commonality is that it is often easy for the candidate or employee to allege that they were discriminated against on the basis of a protected ground under Human Rights legislation.
Human rights legislation prohibits discriminatory conduct on the basis of a number of grounds, such as race, religion, disability, sexual orientation, etc. Notably, the protected ground does not need to be the sole reason for a decision in order to result in a breach of the legislation. As we often warn clients, even if it is a tiny portion of the reason, that is unlawful discrimination. For example, in one case, a court found that the employer had ample legitimate reasons to dismiss an employee. However, the culminating incident was their request for time off to observe a (lesser known) religious holiday. The court found that this was part of the reason for dismissal, and thus the employer had breached the employee’s human rights.
Sometimes we are consulted by individuals who allege that they have been discriminated against, but there is no factual basis for it. For example, they will say “I was a very good employee with no issues, so they must have let me go because I am _____ [insert protected ground]”. As we tell them, that won’t cut it and, furthermore, such baseless claims undermine the legitimate ones. However, the reality is that although the onus of proof falls on the Applicant or Plaintiff, it is often not difficult for them to establish a plausible claim for unlawful discrimination. In many cases, that is because the Respondent or Defendant has no evidence to rebut the allegation.
For employers, it is important to be proactive so that you can refute allegations of unlawful discrimination. In the hiring process, log all of the reasons that you hired someone, and the reasons you did not select others. This does not have to be onerous, but can involve handwritten notes jotted down on an application. However, those should be enough to refresh your memory about a long-forgotten candidate.
Second, remember this rule: you don’t want to know any more than you have to. What I mean by that is that you are better off not knowing personal characteristics that relate to protected grounds. Whether it is in the context of idle chit chat, a formal interview, or a social media review (which is not unlawful and can be quite useful), avoid eliciting such information. Be mindful of seemingly innocuous questions, such as whether someone has children, or even what they did over the weekend or holidays. If they tell you all about their holiday celebrations, or children’s activities, then you now have information relating to protected grounds.
When conducting social media reviews of candidates, I recommend having a non-decision maker do the search. Have them prepare a report for the decision-maker which only contains relevant information about their suitability for the job. That way, if the decision-maker is ever cross-examined, they can honestly say that they were unaware of any online information.
When preparing for a dismissal, it is wise to document the decision to dismiss as early as possible. That can be as simple as a “memo to file” (which sounds very old-school) or an email message confirming the decision. If that memo or email pre-dates the time they learn of the protected ground, such as the employee being pregnant, then they can rebut an allegation that the protected ground was one of the reasons for the decision.
For employees who suspect that they have been discriminated against unlawfully, document, document, document! As we often say, cases are not decided based upon truth but based on the evidence. Do your best to document any interactions, and use self-serving emails if need be. Recording conversations without telling the other party can be risky but is not illegal and can provide evidence that you would not otherwise have; however, you should get advice from an Employment Lawyer before doing so.
Pith and substance
Not all discrimination is unlawful; however, discrimination based on protected grounds is. Employees should do their best to obtain evidence of unlawful discrimination and obtain proper legal advice. Employers should protect themselves by avoiding situations where they might unnecessarily obtain information relating to protected grounds, and should document the lawful reasons for their hiring and firing decisions.
At the end of the day, courts, arbitrators and tribunals base their decisions on the evidence because they do not have a way to know exactly what happened. Employers and employees should be mindful of that and ensure that the evidence reflects the truth and supports their position.