Many H.R. Departments pride themselves on the skill with which they can interview prospective employees in order to assess their qualifications for the position being advertised, the fit of the employee with the organization, and the likelihood that the employee will stay with the organization for a reasonable period of time. What employers are often not cognizant of is the limitation imposed on this process by the provisions of various provincial and federal Human Rights statutes.
There are two relevant pieces of legislation which cover employers in Ontario. The bulk of employers are covered by the Ontario Human Rights Code. Federally regulated employers, such as airlines, Canada Post, and railways come under federal jurisdiction and are regulated by the Canadian Human Rights Act. Both statutes prohibit the discrimination in the employment or dismissal from employment of persons based on stipulated characteristics. All of the common law provinces have similar legislation. However, this article will focus on the Ontario and Federal codes.
The Ontario Human Rights Code prohibits discrimination with respect to employment based on race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status, or disability. As can be seen, every conceivable disadvantage has been covered. The Act further provides that no person shall “infringe or do, directly or indirectly, anything that infringes a right under this part.” Section 10 of the Act gives a greater description to the meaning of things such as disability, family status, harassment, or marital status. For example, marital status is defined as including the status “being married, singled, widowed, divorced or separated and includes the status of living with a person in a conjugal relationship outside of marriage”. The wide scope of the Act makes it particularly difficult for employers to ensure they do not run afoul of its provisions in the process of searching for and hiring employees. Complaints under these statutes are dealt with by the respective Human Rights tribunals.
The obligations imposed by the statute prohibiting the discrimination in employment begin before the employment relationship even commences. It has been held that any advertising for an open position cannot refer either directly or indirectly to any of the prohibited grounds of discrimination listed in the Human Rights Codes. Similarly, questions asked during the hiring process may be assessed against the standard of whether or not they discriminate based on one of the prohibited grounds under the statutes. The Ontario Act specifically provides, in Section 23, that the right to equal treatment is infringed where “…an invitation to apply for employment or an advertisement in connection with employment is published or displayed that directly or indirectly classifies or indicates qualifications by a prohibited ground of discrimination”. The Federal Act contains a similar prohibition in Section 2. For example, if an ad specifies that, due to the nature of the business, only people under age 25 will be considered, such an ad will run afoul of the statute. Similarly, when dealing with questions arising from the application process, both statutes prohibit any type of application, whether written or oral, that “directly or indirectly classifies or indicates qualifications by a prohibited ground of discrimination” (Ontario Code).
The application of this provision was considered in a recent decision of the Ontario Superior Court. In this case, the applicant had been on a job interview. She complained that the interviewer had inquired as to how many children the applicant had and whether she intended to have more. The company representative explained the questioning based on the environment in the office in which the interview took place – that there were a number of family photographs displayed in the interviewer’s office. The company also argued that there was no evidence that the answers to these questions in any way resulted in actual discrimination against the job candidate. However, the Tribunal rejected the company’s position and found that there was discrimination contrary to the Code and assessed the penalty.
Given the multinational and multicultural qualities of the Toronto population, the issue of discrimination based on place of origin and ethnic origin arise frequently before the Tribunal. An applicant’s background can become clear from the materials submitted in application for a position – i.e. name and location of schools, languages spoken, cities lived in, and positions held. Unfortunately, many H.R. professionals are not sufficiently aware of the restrictions imposed by the provisions of the various Human Rights Codes and how to avoid breaching these restrictions. For example, in one case before the Ontario Tribunal, it came out in evidence that the interviewer inquired about the candidate’s daughter’s age, her husband, and how the applicant had come to Canada. It was the evidence of the candidate that when she answered these questions, the whole tenor of the interview changed.
In determining whether these questions in fact constituted a breach of the Code, the Tribunal reiterated its frequently stated position that “motive or intention to discriminate is not a necessary element of discrimination”. On that basis, the Tribunal concluded that the questions regarding family status, marital status, and place of origin were improper and constituted a “prima facie case of discrimination”. The Tribunal found that the applicant discharged this onus by proving that she was qualified for the job but not hired, that the candidate who did get the job was no more qualified than she, and that the candidate who got the job did not have the “code related features of the applicant”.
Having found a case of discrimination, the Tribunal went on to assess the damages suffered by the applicant. In Human Rights’ cases the assessment of damages is always a difficult issue as they are generally non monetary. In this case, the applicant had lost some time from work which the Tribunal valued at $496.00. Of greater significance was the injury to dignity, feelings, and self respect. While such injury may sound significant, the Tribunal is limited in the amount it can award. The history of awards given by the Tribunal for such losses generally runs between $5,000 and $15,000. In this case, the Tribunal assessed damages in the amount of $4,000. Finally, the Tribunal felt that the owners of the business were “not aware of its obligations under the Code”. It therefore ordered the owners of the business to complete the Ontario Human Rights Commission’s online training module. The value of such module is questionable at best.
In a 2012 decision, the Canadian Human Rights Tribunal considered the issue of motive behind a discriminatory practice. One of the defenses available to an employer to a claim of discrimination in employment is to show that the allegedly discriminatory job requirements are bona fide occupational requirements (often referred to by the acronym BFOR). The Tribunal held that, where the employer is motivated by a discriminatory intent, the requirement cannot constitute a bona fide occupational requirement which would absolve the employer of liability.
The remedies under the Canadian Code are somewhat wider than under the Ontario legislation in that the Canadian Code specifically provides for the right to reinstatement. In the above-noted decision, the Tribunal considered the three remedies sought by the employee, being reinstatement, compensation for lost wages, and compensation for pain and suffering. It ordered that the employee be reinstated in her previous position, without loss of seniority. It also ordered that the employer pay the employee for wages lost while off work, less at 30% reduction due to the employee’s failure to mitigate her damages. Finally, the Tribunal awarded $15,000 for pain and suffering.
What then is the take away from these considerations under the various Human Rights Codes?
First, employers must be conscious of the provisions of these Codes, and ensure that the people conducting job interviews of potential candidates are well aware of the restrictions under the Codes. In addition, people conducting the interviews should be required to maintain complete and comprehensive notes of all job interviews, and in particular of all questions asked and answers received. Finally, in cases where a candidate is not offered a position, a clear and fulsome letter advising the candidate of the reasons that an offer was not made should be provided to the candidate.
Garfinkle, Biderman LLP
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