In Reiss v. CCH Canadian Limited, 2013 HRTO 764
(CanLII), Reiss, a 60 year old lawyer applied for a legal writing
position with CCH, a legal publishing company. 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out of date?"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
The HRTO Decision
The Human Rights Tribunal of Ontario ("HRTO") 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
Further, the HRTO ruled that 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 HRTO 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
HRTO 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 HRTO).
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.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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