Managing the message in the hiring process in Canada: human rights risks

June 23, 2013 - by: Marc Rodrigue 0 COMMENTS

By Marc Rodrigue

Hiring a new employee can be a lengthy process, fraught with complex evaluations of skills, qualifications, and other attributes. The whole process must of course comply with applicable provincial and federal antidiscrimination laws.

What people say during the process may provide evidence that a hiring decision is discriminatory. Where multiple people are involved, the risk increases that remarks are made that are perceived as discriminatory. As one employer in Ontario recently discovered in Reiss v. CCH Canadian Limited, failure to manage the message to candidates can lead to a successful human rights claim even if the decision itself was proper.

What happened

At age 60, Peter Reiss had been a practicing lawyer for several years. He applied for a position with CCH Canadian Limited after he lost his job during a downsizing. The position at CCH was a junior- to mid-level legal writer position.

Worried that CCH may have a concern about his age, Reiss omitted information from his resume that would indicate the length of his career or highlight his age. By the time it received Reiss’ application, CCH already had interviewed people it considered to be good candidates. When CCH human resources personnel received Reiss’ application, they noticed the absence of dates that Reiss had purposely omitted.

As part of its recruitment and hiring process, CCH had engaged the services of a consultant to work with its human resources personnel. This consultant was Reiss’ contact person during the recruitment process. Through the consultant, CCH requested that Reiss resubmit his application and include the omitted dates. He did so.

CCH believed Reiss was a qualified candidate but was wary of the fact he had omitted dates in his original application. It was decided that Reiss’ application would be put on hold pending the results of the earlier set of interviews. This decision was communicated by CCH to its consultant.

In a subsequent series of e-mails, the consultant wrongly told Reiss that CCH had decided not to select him. When pressed for a reason, the consultant said that CCH had decided to pursue candidates that were “more junior in experience and salary expectation.” This message didn’t accurately reflect CCH’s decision making.

CCH ultimately filled the legal writer position with a candidate who had been interviewed earlier.

Reiss brought an application to the Ontario Human Rights Tribunal (HRTO) claiming that the rejection of his candidacy was based on age discrimination, contrary to the Ontario Human Rights Code.

Outcome

The HRTO decided that “age” wasn’t a factor in the decision making of the CCH human resources personnel, who had ultimate authority for filling the legal writer position.

But the HRTO found that CCH, through the consultant, had nonetheless discriminated against Reiss in giving him the wrong status update information. The HRTO said that the status update led Reiss to believe his application was rejected based on age, given that the consultant indicated CCH was proceeding with more “junior candidates.” As a result, the HRTO awarded Reiss $5,000 from CCH as compensation for injury to dignity, feelings, and self-respect.

Lessons learned

Employers should be careful in managing messages to prospective employees. Any personnel involved in the hiring process can put the employer at risk. Conveying inaccurate information to applicants can lead to resentment, false expectations, and reputational harm. Conveying inaccurate information that suggests a hiring decision was discriminatory can lead to financial liability under human rights laws even if the actual decision is proper.

To mitigate the risk, employers should ensure that information conveyed to job applicants is clear and consistent with the hiring process. This is especially important when a third-party consultant or another individual not directly involved in the decision making is the contact point for a candidate. Communications can get distorted as they are passed back and forth through an intermediary. Such distortion can itself put the employer at risk.

About Marc Rodrigue:
Marc Rodrigue is an Associate with the Firm's Labour, Employment and Human Rights practice group. He maintains a broad practice including matters relating to human rights, employment agreements and terminations, departing employee litigation, labour relations and collective agreement interpretation. Prior to joining Fasken Martineau as an associate, Marc articled with the Firm in 2011/2012. During that time, he represented Toronto articling students on the Ontario Bar Association Council. He also summered with the Firm in 2010, during which time he was seconded to the Ontario Human Rights Commission.
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