Unintentional discrimination is still discrimination

Ontario law firm may not have directly intended to discriminate against job candidate, but its comments and dismissive attitude were enough show age and race were a factor in his rejection
By Kristen Woo
|employmentlawtoday.com|Last Updated: 08/14/2019

A recent Ontario human rights decision is an important reminder for employers to be careful in how they assess and treat candidates during the recruitment process. In Moore v. Ferro (Estate), the Human Rights Tribunal of Ontario held that a law firm discriminated against an applicant because of his age and race, and by failing to investigate his discrimination complaint. The tribunal also found that the law firm engaged in a reprisal.

The applicant was 45 years old. He self-identified as a Black man of Afro-Caribbean descent. He applied for a position at a law firm in Ontario and went through several interviews.

At the completion of the hiring process, the law firm told the applicant that he would not be receiving an offer. The applicant sent a five-page email to the firm alleging that the firm discriminated against him because of his age and race. In the heated exchange of emails that followed, the principal lawyer at the firm made many abusive remarks to the applicant, including: "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 firm.

What did the tribunal decide?

The tribunal said the following principles apply when assessing a claim of age or race discrimination:

  • Neither age nor race has to 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 is the effect of the respondent's actions on the complainant.
  • There does not need to be direct evidence of discrimination; discrimination will more often be proven by circumstantial evidence and inference.
  • Age and racial stereotyping will usually be the result of subtle unconscious beliefs, biases, and prejudices.

The tribunal said the firm discriminated against the applicant because age was considered by the firm in not making an offer. For example, in interview notes, one person referred to the applicant as "older" and noted that other applicants were "young." The interviewers also attributed positive characteristics to the younger candidates such as ambition, mental quickness, being opinionated, and having good computer and software skills. According to the tribunal, this was evidence of reliance on stereotypes about older people. Turning to the allegation of racial discrimination, the tribunal held that the fact that only racialized applicants had attended group interviews was not enough to show that a different hiring process was used for racialized candidates.

However, the tribunal held that the firm discriminated on the basis of race by failing to take any steps to seriously address, investigate, and properly respond to the applicant's complaint of discrimination, and by justifying its dismissive reaction by accusing the applicant of "playing the race card." The tribunal also found that the firm engaged in a reprisal by responding to the applicant's allegations with abusive remarks, such as referring to the applicant as "a very angry and disappointed young man."

Lessons for employers

This decision was decided in Ontario but employers across Canada can learn from it. Employers should be mindful of how easily beliefs, biases, and prejudices can taint the hiring process. In this case, the belief that younger candidates had certain positive traits that older candidates did not contributed to the finding of discrimination.

Employers should be courteous in communications with all job candidates. Avoid engaging in arguments. Do not make offensive comments about the candidate's professional abilities or personal character, even if they engage in rude behaviour. But, if an applicant raises allegations of discrimination, take them seriously and investigate them to find out if further action should be taken.

For more information see:

  • Moore v. Ferro (Estate), 2019 HRTO 526 (Ont. Human Rights Trib.).

Kristen Woo is an associate with Fasken Martineau DuMoulin in Vancouver practicing labour, employment, and human rights law. She can be reached at (604) 631-3108 or kwoo@fasken.com.

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