Chapter 2 - Hiring

The creation of what legislation in Ontario has made blatant forms of discrimination no longer tolerable?

The HR Code

How many grounds prohibits discrimination in the HR Code?

16

To be considered a BFOR, what case set out a three part test, and what are the parts?

• Meiorin case — the discriminatory rule/requirement must be

  1. Adopted for a purpose rationally connected to the performance of a job

  2. Adopted in an honest belief that it was necessary to satisfy a legitimate business purpose; and

  3. Reasonably necessary to accomplish that purpose (show it’s impossible to accommodate that group without creating undue hardship for itself)

T/F: “Employment” includes unpaid internships

True

Where a provision is silent or ambiguous about an issue, what will the courts and tribunals often use as an internal aid in deciding how to interpret the Code in its broadest sense?

The preamble

T/F: The HR Code is a quasi-constitutional law?

True

If there is a conflict between the HR Code and another Ontario law (ex. Employment Standards Act), which prevails? Why?

The Code prevails unless otherwise specifically stated

Becuse the Code is a quasi-constitutional law

What are the exemptions to discrimination?

• BFOR

• Special service organization

• Affirmative Action program

• Nepotism/anti-nepotism policies

What does Special service organization mean?

A non-profit social, religious, or other organization that serves the interests of a group that is protected under the HR Code; which allows jobs to discriminate if it’s relevant to the job

A regligious organization requires that all of it’s counsellors be of the same religious faith in order to be hired. Which of the exemptions would this fall under?

Special service organization

Can you discriminate in your own home?

Yes

Is basing seniority on “days worked” discrimination?

• No

• The tribunal found that given the sporadic and unpredictable nature of casual work, a negotiated seniority clause providing for seniority based on days worked was reasonable, regardless of the reason for not working

To prove a prima facie (on the face of it) discriminatory case, what must the applicant do?

• Show that they are a member of a group protected by the Code

• Show that they were subject to adverse treatment 

• Show that there was a connection between the adverse treatment and the ground of discrimination

  • → then the onus shifts to the employer on a balance of probabilities

What do nepotism/anti-nepotism policies stipulate?

That employer policies CAN allow an employer to discriminate in favour of, or against, specified close relatives of employees

T/F: The HR Code is considered to be remedial?

True

Remedial legislation: law intended to right a societal wrong and provide a remedy, rather than to punish an offender

What is the importance of the HR Code?

• it’s remedial

• it’s quasi-constitutional

• it’s constantly evolving

What are the 16 prohibited grounds of discrimination?

1. Race

2. Colour

3. Ancestry

4. Creed

5. Place of Origin (where you were born)

6. Ethnic origin

7. Family status

8. Disability

9. Age

10. Sexual Orientation

11. Gender

12. Gender identity

13. Gender expression

14. Marital status

15. Citizenship

16. Record of offences

Additional grounds

• discrimination based on association

• discrimination through reprisal

Must an employer’s decision to terminate an employment contract be based entirely on a discriminatory ground to attract the censure of the Code?

No

• a prohibited ground of discrimination only needs to be/show one factor in the employer’s decision to terminate for the termination to be discriminatory

What is probably responsible for more discrimination than any other area of employment practice?

The selection/hiring process

How can an employer avoid committing discrimination and violating the Code during a hiring process?

• accommodate candidates’ disabilities or religion

• have a standard set of interview questions

• use interview teams for each interview

• beware of prohibited grounds

Christie v The York Corporation: Facts, filed, final decision

Facts: Christie went to a tavern with friends and they refused to serve him because he was “coloured.”

What HR ground did he file under: Race

Decision: the SCC sided with the tavern, stating that freedom of commerce allowed for businesses to choose who they did and didn’t want to serve

Gajecki v Surrey School District: Facts, filed, final decision

Facts: Gajecki immigrated from Canada and worked as a substitute teacher. After being promised a permanent role, he wasn’t hired, and a district rep told him it was because he had a “tag” on his file that he shouldn’t be given work because he “doesn’t speak english” despite only having a polish accent

What HR ground did he file under: Language isn’t an enumerated ground under the HR code, you’d have to go under other grounds such as ancestry and place of origin. He filed under Place of origin

Decision: court sided with Gajecki and paid damages

Maciel v Fashion Coifures: Facts, filed, final decision

Facts: Candidate told employer she was 4 months pregnant on her first day of work, and they fired her that day.

Which HR ground did she file under: family status (discrimination based on pregnancy)

Decision: HRTO sided with her

Nelson v Goodberry Restuarant: Facts, filed, final decision

Facts: Candidate was being misgendered by co-worker repeatedly, despite correcting them. Employer did not fire the co-worker, stating that they already have so many complaints against them that adding another to the pile wouldn’t help.Candidate patted co-worker on the back and co-worker felt threatened. Candidate was subsequently fired.

Which. HRground did they file under: Gender identity (?)

Decision: No performance issue can take precedent over human rights issues, because HR violations are quasi-constitutional laws. HRT sided with Candidate (?)

Cowling v Her Majesty the Queen in Right of Alberta: Facts, filed, final decision

Facts: 59 year-old candidate was continuously re-contracted for their position. After 8 years, she was told the department was restructuring for growth and development, and she didn’t get re-hired despite the job description being identical to the position she held.

Which HR ground did she file under: Age

Decision: HRT sided with her; had her re-instated (72 years old)

Quebec v Montreal (City): Facts, filed, final decision

Facts: Candidate applied to work in a park development and had to pass a medical exam to be hired. Results showed a slight curvature in thier spine that they hadn’t known about, didn’t have symptoms for, and didn’t impact their life. However, the employer assumed that overtime the curvature would develop into a full-blown disability, and didn’t hire them.

Which HR ground did they file under: disability (perceived)

Decision: HRT said this was discrimination under disability, because what matters is how the person experiences and is affected by it, not the nature or cause.

Johnson v D & B Traffic Control: Facts, filed, final decision

Facts: Employer perceived that the candidate had a disability because they were obsese, and did not hire them

Which HR ground did they file under: disability (perceived)

Decision: Obesity is only disability if it’s because of an underlying medical condition, which in this case it was not. HRT sided with candidate

Sangua v Mackenzie Valley: Facts, filed, final decision

Facts: Candidate with overqualifications applied to an entry-level position after immigrating to Canada. The employers thought he would get bored in the position, so they didn’t hire him.

Which HR ground did he file under: Race, national/ethnic origin, colour, and religion

Decision: HRT found that overqualified immigrants often face this experience when applying to jobs. Visible minority immigrants are disproportionately excluded from higher levels of the job market because of barriers to employment at this level. Sided with Candidate

Weyerhause Company Ltd. V Ontario HR Commission: Facts, filed, final decision

Facts: Candidate applied to a safety-sensitive position that was contingent on passing a drug test, to which he lied about taking. He was ultimately not hired for the job

Which HR ground did he file under: disability (?)

Decision: The HRT doesn’t protect the right to lie, and he wasn’t hired because he was dishonest, not because he could’ve been disabled (addict). Pre-employment drug testing is not prima facie discriminatory

Mack v Marivstan: Facts, filed, final decision

Facts: Candidate was 7 months pregnant and applied for a kitchen job requiring heavy lifting. She wasn’t hired.

Which HR ground did she file under: Sex

Decision: HRT found that employer exercised legitimate BFOR, and sided with employer

Quebec v Mackseel: Facts, filed, final decision

Facts: Candidate was imprisoned. The next day was his first day at a new job, to which he couldn’t show up, so the employer fired him and wouldn’t hire him when he was out of prison

Which HR ground did he file under: Convicted/criminal offence

Decision: Initially the courts sided with him. However, the SCC sided with the employer because they didn’t discriminate against him because he had a rap sheet, but fired him because he neglected to show up to work

Brooks v Safeway Canada: facts, filed, final decision

Facts:

Which HR ground did they file under:

Decision:

Liu v Everlink Payment Services Inc: facts, filed, final decision

Facts: Candidate was a Help Desk Analyst with sub-par English language skills. However, knowing english proficiently wasn’t a requirement of the job, but he was fired for not being proficient.

Which HR ground did they file under: place of origin

Decision: Courts sided with candidate; it’s important to establish objective language proficiency standards and allow employees the opportunity to address specific concerns