In Reiss v. CCH Canadian Limited, Peter Reiss, a 60 year old lawyer, applied for a legal writing position with CCH, a legal publishing company based in Toronto. In order to avoid drawing attention to his age, Reiss intentionally omitted from his resume the dates of his call to the bar and his prior employment during his 30-year career. He also submitted a salary expectation that was considerably lower than market. CCH’s human resources followed up with him to clarify the missing dates, which Reiss provided. CCH then put Reiss’ application "on hold" while it interviewed two other candidates whose resumes had been received earlier and were identified as promising candidates. CCH ultimately offered the position to one of the other two candidates without interviewing Reiss.
After submitting the missing dates, Reiss sent an email to CCH’s human resources consultant who was assisting CCH with the recruitment process -- he was not the decision maker with respect to hiring decisions -- asking when he could expect an interview. Put off by the "aggressive" tone, the consultant sent a reply email stating that Reiss’ application had not been selected. Reiss sent a follow-up email asking "Were my credentials out of date?" to which the consultant replied, "It is looking like they are moving toward candidates that are more junior in their experience and salary expectation." The candidate who accepted the job lasted only one week. The other candidate accepted a position elsewhere.
The tribunal decision
The Human Rights Tribunal of Ontario ruled that the consultant’s emails were misleading and incorrect; the former because CCH had only put Reiss’ application "on hold," and the latter because the other candidates had actually submitted higher salary expectations than Reiss.
Further, the tribunal found the emails result were tainted by age discrimination and had an adverse effect on Reiss. Telling Reiss that CCH was looking at more junior candidates in experience and salary expectations was "suggestive of a stereotyped assumption that an older person would necessarily want a higher salary and would therefore not be a good candidate." Moreover, the adverse effect of the emails was that Reiss assumed he had been rejected, which was not the case. Because the successful candidate quit one week in, and the other candidate had gone elsewhere, Reiss might actually have been the successful candidate had he been told his application was "on hold" and therefore had the opportunity to follow up again.
The consultant was not the decision maker with respect to whether Reiss received an interview. Therefore, the adverse effect was “limited to depriving (Reiss) of an opportunity to follow up." The tribunal was clear that CCH did not discriminate on the basis of age by not interviewing Reiss. Acknowledging that it was difficult to fashion a monetary remedy in these circumstances, the tribunal awarded $5,000 to Reiss "for injury to dignity, feelings and self-respect as a result of the discrimination resulting in (the consultant) giving the applicant incorrect information about the status of his job application."
Practical implications for employers
Discrimination in the hiring process is always a risk, particularly when resumes and job applications provide dates of a candidate’s education and prior work experience. In many industries and for many jobs, providing this information is unavoidable. Until now, concerns about age discrimination have generally involved refusals to interview or refusals to offer the job. The decision in Reiss v. CCH Canadian Limited suggests that even a miscommunication about the interview process can be a violation of the Human Rights Code if there is any indication that the communication was tainted by discrimination.
In this case, age discrimination was found even though the consultant made no direct mention of Reiss’ age or "senior" experience. The discrimination was ultimately based on the consultant’s use of "more junior" to describe the other candidates (although his untrue statement that Reiss had not been selected likely did not endear him to the tribunal). Employers should be very careful when communicating with prospective candidates about the interview process. In particular, employers should avoid commenting on the quality or nature of other candidates’ applications or credentials, and keep all communications with candidates to a factual minimum regarding the steps in the interview process.
For more information see:
Reiss v. CCH Canadian Limited, 2013 HRTO 764 (Ont. Human Rights Trib.).
Anne-Marie Naccarato is a labour and employment lawyer for Cassels Brock & Blackwell LLP in Toronto, exclusively representing employers (both non-unionized and unionized) across North America in all manner of labour and employment law. She can be reached at (416) 869-5396 or firstname.lastname@example.org.