In Kosovic v Niagara Caregivers and Personnel
Ltd ("Kosovic"), the Ontario Human
Rights Tribunal held that a recruitment agency's job
application form that asked for the applicant's date of birth
contravened the Ontario Human Rights Code. The Tribunal awarded the
applicant $500 in damages to compensate him for injury to his
dignity, self-respect and feelings, even though the applicant's
answer to the question about his age was not the reason that he was
The agency in this case argued that a question about the
applicant's date of birth was asked because work permits from
the Canadian government, and the permits required the
candidates' dates of birth. The Tribunal rejected this
rationale and held that the date of birth requirement on the
application form violated sections 5 and 23(2) of the Ontario
Human Rights Code (the "Code"). The
Tribunal reasoned that if an applicant's date of birth is
necessary for a work permit, the recruitment agency should not make
inquiries to obtain that information until after the application
phase of the recruitment process.
The Tribunal did not make any orders in addition to the $500 in
damages, because, by the time the hearing took place, the
respondent's application forms no longer contained the question
asking for the applicant's date of birth. Accordingly, there
was no need for the Tribunal to order the recruitment agency to
revise its application forms to comply with the Code or
implement other policy oriented remedies.
This case shows the increasing scrutiny of employment decisions
for age discrimination issues. Perhaps reflecting an aging
workforce and heightened sensitivity to the challenges of older
workers or others who may face discrimination on the basis of age.
The case demonstrates the importance of being cautious in limiting
the amount of information collected at the time of recruitment, to
only what is necessary and not including information on any
protected grounds under the Code. For example, questions
that ask a candidate to identify his or her age, place of origin,
or marital status may create risks of discrimination under the
Code, unless there is a clear, Code compliant, reason for
the employer to be asking such questions.
As was the case in Kosovic, whether the information is
ultimately relied on in making a hiring decision may not be
relevant for the purposes of evaluating whether the employer's
application process complies with the Code. This points to
a willingness of the Tribunal to find damages for harm to dignity
even where there is no practical consequence of the Code
contravention for the complainant. With such risks in mind, the
best approach is to ensure that job application forms only ask
candidates for information that is required to allow their
candidacy to be assessed, which are oriented towards job
requirements and, to the extent possible, not revealing of
protected characteristics under the Code.
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