The Ontario Human Rights Tribunal (the Tribunal), in its recent decision of Kosovic v. Niagara Caregivers and Personnel Ltd. (Kosovic), has restated its stance on the types of questions that may be asked of job applicants under Ontario's Human Rights Code (the Code). In light of a job application question relating to the age of the applicant, Mr. Kosovic, the Tribunal issued a $500 damages award against the respondent. This damages award was made despite the fact that the Tribunal ultimately held that the applicant was not denied employment based on his age.
In Kosovic, the applicant submitted a job application to the respondent, Niagara Caregivers and Personnel Ltd., a firm in the business of recruiting and referring caregivers to prospective employers. At the time of the application, the applicant was 60 years old. The applicant alleged that when he completed the application, the respondent asked that he, "write down all the medication he uses and indicate for what illness he uses them," as well as his date of birth. After hearing nothing from the respondent thereafter regarding the status of his application, he determined he was not going to receive a referral from the respondent and that such non-referral was due to his age. He subsequently brought an application before the Tribunal alleging that, also adding an allegation that that he was discriminated against on the basis of disability as a result of the question posed relating to his medications.
While the respondent denied asking the applicant for a list of medications, it conceded that it had asked for his date of birth. In light of the conflicting and unreliable testimony of the parties, the Tribunal could not conclude that the respondent had asked the question relating to the applicant's medication. Thus, it focused its inquiry solely on the question posed relating to his age. According to the respondent, this question was necessary as many of the job applicants it dealt with were, "immigrants to Canada who must obtain work permits from Canadian Immigration," the granting of which requires information as to an individual's date of birth.
The Tribunal held, however, that this argument failed to justify the inclusion of such question, which violated both sections 5 and 23(2) of the Code. In particular, while section 5 of the Code contains the general prohibition against discrimination with respect to employment (including discrimination based on age, defined as "18 years or more"), section 23(2) clarifies that such right includes a prohibition against any form of job application directly or indirectly classifying or indicating qualifications by a protected ground. While the respondent argued that as a referral agency it was not a prospective employer of the applicant, the Tribunal stated that the language in section 5 and 23 of the Code, notably prohibiting discrimination "with respect to employment," was broad enough to apply to the respondent.
Citing its previous decisions, the Tribunal noted that the mere asking of a question relating to a protected ground is prima facie discriminatory, even where a job applicant is not refused a job. Thus, the Tribunal stated that if the respondent refers an individual for employment who is not yet permitted to work in Canada, and if such individual must participate in a process requiring information as to their birth date, any question relating to the same must be made after the decision to refer the individual to a client has been made and the individual is actually engaged in the process of obtaining permission to work in Canada.
Despite this finding the Tribunal ultimately determined that the respondent's decision to not refer the applicant for employment was not discriminatory. In particular, it was held that this decision was driven solely by the fact that the applicant had failed to provide the requisite documentation called for in the job advertisement. Further, it was held that the practice of the respondent was such that any incomplete job applications would have been held open until the required documentation was provided, and that the applicant would have been informed of this fact. The applicant, however, failed to provide such documentation.
As the Tribunal did not find that the applicant was denied a referral due to his age, it did not did not make any award for damages for lost wages, nor did it make any award of damages for injury to dignity, feelings and self-respect in relation to the applicant not obtaining employment through the respondent. It also refused to make an order for an employment contract or for a referral to a client of the respondent, as requested by the applicant.
An award was, however, warranted on account of injury to the applicant's dignity, feelings and self-respect that arose as a result of the improper question relating to his age. To determine an appropriate benchmark for the quantum of such award, the Tribunal looked to its other decisions concerning improper questions asked in pre-employment contexts. In the 2009 decision of Thompson v. Selective Personnel (Thompson), the applicant was awarded $3,000 after a question was asked as to whether the applicant had ever been under psychiatric care. Thompson was distinguished by the Tribunal, however, since the applicant in that case withdrew her name from candidacy in light of her humiliation and conviction that she had no prospect of being awarded the job.
InYildiz v. M.A.G. Lighting (Yildiz), a 2012 decision of the Tribunal, $1,500 was awarded to an applicant after he was asked in a job "try out" about his place of origin. The applicant had previously suffered ethnic discrimination in his home country of Turkey, and as such, the posed question caused him to be "deeply upset" and injured his self-respect. He was ultimately not offered regular employment but the Tribunal held it was not due to a discriminatory reason. With respect to the damages awarded, it was noted that injury to the applicant's feelings in that case was made worse by the fact that the decision not to hire the applicant was made after the question was posed. Further, the applicant was also working for the respondent at the time of the question, albeit on a "try out" basis.
In this case, the Tribunal held that the applicant was not significantly impacted by the question relating to his age, as he would have been open to progressing through the referral process had he heard back from the respondent. Similarly, he did not seek employment elsewhere as he had placed a high value on securing employment through the respondent. As such, this was not a situation where the applicant was humiliated and withdrew his application as in Thompson, or experienced deep upset as in Yildiz. However, as the applicant was "shocked" that he was asked for information relating to his age, the Tribunal awarded him $500.
Kosovic serves as a helpful reminder to employers that questions posed in the pre-employment context, whether orally or in writing, that directly or indirectly relate to protected grounds under the Code can be grounds for liability. This is the case notwithstanding the answers to such questions may play no role in the ultimate decision made about a candidate. Pursuant to section 23(3) of the Code, employers are only allowed to ask questions concerning prohibited grounds where discrimination on such grounds would otherwise be permitted under the Code, i.e. questions relating to the essential duties of the position. Employers would be wise to review potential job application forms and standard interview questions to ensure that they are proper and appropriate.
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