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Author:
Jacob Love

Date:
2019.10.18

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Human Rights

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THE EMPLOYERS' EDGE

Employer Pays A Heavy Price For Discriminatory Hiring Policies

Practice Areas: Human Rights

A recent decision by the Human Rights Tribunal of Ontario provides a stark reminder for employers that hiring policies which violate Ontario’s Human Rights Code (the “Code”) can carry serious financial consequences.

In Haseeb v Imperial Oil Ltd, the Applicant was an international student on a student visa in his final year of mechanical engineering a McGill University. He applied for an entry level position with Imperial Oil. In his application and subsequent interviews, the Applicant said that he was eligible to work in Canada on a permanent basis. The Applicant was successful in the application process and was offered a position on the condition that he provide documentary proof of citizenship of permanent residency. In subsequent phone calls, the Applicant revealed that he was not permanent resident. As a result, Imperial Oil rescinded the offer because the Applicant did not meet the condition of being able to work in Canada permanently and had lied about his status.

The Applicant filed a complaint with the Human Rights Tribunal (the “Tribunal”) on the basis that this job requirement amounted to discrimination in employment on the basis of citizenship.

The Tribunal bifurcated the hearing and addressed the issue of liability in Haseeb v Imperial Oil Ltd, 2018 HRTO 957 (see our blog on this decision here) and more recently addressed the issue of remedy in the decision Haseeb v Imperial Oil Ltd, 2019 HRTO 1174.

In its decision on liability, the Tribunal found that the respondent had violated the applicant’s rights under the Code in two respects: (1) on the basis that the company’s “permanence requirement” was a factor in its decision not to hire the applicant, which constitutes discrimination in employment because of citizenship contrary to the Code; and (2) on the basis that the respondent’s policy of requiring a job applicant to disclose in writing and verbally that she or he is a citizen or permanent resident of Canada is prohibited conduct in violation of the Code.

In its decision on remedy, the Tribunal awarded the Applicant, a person who never actually worked a day for the company, lost income for four years! This lost income covered the period from when the Applicant would have commenced employment with Imperial Oil to the time of the decision (minus the periods the Applicant would not have been working). This amounted to a whopping $101,363.16 plus interest in lost wages. On top of the award for lost wages, the Tribunal awarded the Applicant an additional $15,000.00 for monetary compensation for injury to dignity, feelings and self-respect.

Employers should be aware that their conduct during the recruitment and interview process can put them in breach of the Code. It is important to take care that job postings, application forms, and interview questions all conform to provincial/federal human rights legislation. The lawyers at CCPartners are experienced in all aspects of human rights law including discrimination complaints and drafting human rights policies. Click here for a list of lawyers at CCPartners who can help.

Click here to access CCPartners’ “Lawyers for Employers” podcasts on important workplace issues and developments in labour and employment law.

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