It is no surprise that racism and ageism still exist in the legal profession. An Ontario Human Rights Tribunal decision released earlier this year is a perfect example and warns employers to be careful during the hiring process. The Tribunal found that the law firm had discriminated against a racialized, foreign-trained lawyer because of his age and race, and by failing to investigate his discrimination complaint. As well, the Tribunal found the law firm engaged in reprisal.
In Moore v Ferro (Estate), 2019 HRTO 526, the applicant, who self-identifies as a Black man of Afro-Caribbean descent, was a foreign trained lawyer, and was 45 years old at the time of the interview. He was called to the Bar of England and Wales in 1998, where he also taught law at a university, and called to the Ontario Bar in 2010.
The respondent lawyer posted an ad for a “junior lawyer” stating “new calls are encouraged to apply” and that “only insurance litigation experience will be considered.” While the applicant did not have insurance litigation experience, the applicant was invited for a “very free-flowing” group interview along with “a young South Asian man who was just completing his articles” and “a young Black male who was newly called to the Bar”. The applicant was told that the firm provided training in personal injury.
During the interview process, the applicant was asked for his marks in English (although the respondent claimed this was asked of all candidates) and he was screened for “fit”.
Despite receiving the highest overall grades in the group interview, a post-interview discussion within the firm raised concerns with respect to hiring the applicant. Specifically, the interviewers noted that the applicant was “older” with “already entrenched habits”, while another interviewee was “young” and had “a competitive edge”.
When the applicant requested feedback after the group interview, Mr. Ferro, the principal lawyer at the firm, responded that it was rare for the firm to hire new calls without articling experience in personal injury.
After a few months, Mr. Ferro’s widow, Ms. Helden, re-interviewed the applicant. She reinforced stereotypes based on age during this process. In particular, she compared an individual who quickly learned the firm’s systems to an older lawyer who could not work well with computers.
Ultimately, the law firm told the applicant that he would not be receiving an offer. The applicant followed up with a lengthy email to the firm, alleging age and race discrimination. Mr. Ferro’s response was “swift and dismissive” and he referred to the allegations as “totally a fabrication of monumental proportions”. Mr. Ferro also made abusive remarks: “you would never have made it past your interview with me — regardless of where you come from or your genetic composition — you are surprisingly embarrassing and I would never have hired you to begin with.”
The applicant filed a human rights complaint against the law firm.
Issues and findings
- Was the applicant discriminated against on the grounds of race, colour, ancestry, place of origin, citizenship and ethnic origin? (YES)
- Was the applicant discriminated against on the grounds of age? (YES)
- Did Mr. Ferro fail to investigate a discrimination claim? (YES)
- Did Mr. Ferro engage in reprisal against the applicant? (YES)
First, the Tribunal laid out the principles that apply when assessing a claim of age or race discrimination:
- The protected ground(s) under the Ontario Human Rights Code (the “Code”) (e.g. age and race) do not have to be the only or even the major factor leading to the discriminatory conduct, as long as they are a factor.
- There is no need to establish an intention or motivation to discriminate; the focus is the effect of the employer’s actions on the employee.
- Discrimination does not need to be proven by direct evidence and can be proven by circumstantial evidence and inference.
- Stereotyping on the basis of age and race will usually result from subtle unconscious beliefs, biases, and prejudices.
Second, the Tribunal commented on the interview process in this case: “this kind of unorthodox and unstructured group interview process creates the danger and risk of the assessors’ own subjective and potentially discriminatory biases coming into play, and does not accord with best practices for interviews as described by the Law Society.”
Third, the Tribunal dealt with the allegations:
- With respect to racial discrimination, the Tribunal held that Mr. Ferro engaged in racial discrimination against the applicant by failing to appropriately respond to the applicant’s allegations of discrimination and by justifying his dismissive reaction based on racial stereotypes and biases. However, the Tribunal found that white candidates did not go through a different hiring process than racialized candidates and that there was no racial discrimination in relation to the hiring process itself.
- With respect to age discrimination, the Tribunal found that the interview notes were evidence of the interviewer’s reliance on stereotypes and biases about younger versus older people, such as the attribution of the following positive characteristics to the younger candidates: ambition, mental quickness, being opinionated, and having good computer and software skills.
- With respect to failure to investigate, the Tribunal noted that although there is no freestanding “duty to investigate” under the Code, in certain circumstances, it is a violation of the right to be free from discrimination where an employer fails to take appropriate steps to respond to an allegation of discrimination. Here, the Tribunal found that “it was inherently discriminatory for Mr. Ferro to fail to take any steps to address or investigate the applicant’s complaint of discrimination”.
- With respect to reprisal, the Tribunal held that Mr. Ferro engaged in reprisal with “his dismissive and contemptuous response to the applicant’s allegations of discrimination, his abusive assault on the applicant’s professional abilities, and his gratuitous and unwarranted attacks on the applicant’s personal character”.
Ultimately, the Tribunal concluded that the estate of the deceased lawyer, Mr. Ferro, was vicariously liable for discrimination and reprisal against the lawyer applicant, and ordered Mr. Ferro’s widow, who conducted the interview, to pay $2,000. The Tribunal held that the applicant was not entitled to compensation for lost income because he would not have been hired to work at that law firm due to reasons that went beyond discrimination.
This decision shows how law firms can go wrong in the hiring process. In particular, it shows how unconscious bias can disadvantage individuals. For instance, a belief that young candidates have positive traits that older candidates do not, or a belief that certain races are more competent than others, could contribute to a finding of discrimination.
Employers must be mindful that in any communications with a job candidate, they must maintain civility and should not make abusive comments with respect to the candidate’s abilities or character. Where an applicant alleges discrimination, employers should not neglect it and should investigate them promptly.
By Nadia Zaman