28 May 2013

A hiring action that was really dumb...

The National Post had an interesting article this morning about an Ontario barrister who, having been downsized and was unable to make a go of private practice, decided at the age of 60 to apply for a relatively low-paying legal writer position at CCH. He was awarded CAD 5000 by the Ontario Human Rights Tribunal because an outside consultant at CCH advised him that his application was rejected, as the company was looking at "candidates that are more junior in their experience and salary expectation." The consultant was not the decision maker, but it was held that his communication made the applicant conclude that it was not worth following up. Accordingly, it was considered to be age discrimination that had an adverse affect, and an award was made for injury done to his "dignity, feelings and self-respect."

Reiss v. CCH Canadian Limited (2013 HRTO 764) is a rather interesting case to read. Reiss asked for a lower salary range than the other two, and declined to state the year he was admitted to the Bar, and these were considered to be "red flags". CCH hired one of the other two, who quit within a week, and the second had accepted a position elsewhere. The hiring manager then hired a former employee for the job, who she had bumped into on the subway. Reiss' application was meanwhile placed on hold. He called to follow up, but his behaviour in doing so was considered to be aggressive.

The whole affair was badly handled, but, in this case, only the outside consultant stepped over the line. The decision does make some useful points. It points out (at par. 61) that a prima facie case of discrimination is established by proving the following:

  • that the applicant was qualified for the particular employment;
  • that the applicant was not hired; and
  • that someone no better qualified but lacking the distinguishing feature which is the gravamen of the human rights complaint subsequently obtained the position

It also points out that discrimination is held to exist when it is a factor (not necessarily the sole or major factor). In that regard (at par. 47), a recital of the analysis that is made in cases of circumstantial evidence is as follows:

The relevant principles that apply in cases where an allegation of racial discrimination has been raised have been usefully summarized as follows: 

  • The prohibited ground or grounds of discrimination need not be the sole or the major factor leading to the discriminatory conduct; it is sufficient if they are a factor; 
  • There is no need to establish an intention or motivation to discriminate; the focus of the enquiry is on the effect of the respondent's actions on the complainant; 
  • The prohibited ground or grounds need not be the cause of the respondent's discriminatory conduct; it is sufficient if they are a factor or operative element; 
  • There need be no direct evidence of discrimination; discrimination will more often be proven by circumstantial evidence and inference; and 
  • Racial stereotyping will usually be the result of subtle unconscious beliefs, biases and prejudices.

This applies to all types of discrimination, and it is something to certainly keep in mind in assessing whether hiring practices are truly focused on getting the best candidate.

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