Canada: "Female Home Support Worker Wanted" - Hiring Criteria Deemed Discriminatory
Labour, Employment & Human Rights Bulletin

It is well known that employers must be careful not to discriminate on the basis of a ground prohibited by the Charter of Human Rights and Freedoms in Quebec and by human rights legislation in other Canadian provinces. However, the obligations of an intermediary who merely applies the selection criteria of a potential employer in providing job search services to the public may be less obvious. The Quebec's Human Rights Tribunal (the "Tribunal") decision in the Commission des droits de la personne et des droits de la jeunesse (Émond) v. Attorney General of Quebec (Ministère du Travail, de l'Emploi et de la Solidarité sociale)¹ clarified this.

What Happened?

The Commission des droits de la personne et des droits de la jeunesse (the Commission) alleged that the Attorney General of Quebec for the Ministère du Travail, de l'Emploi et de la Solidarité sociale (MTESS) and an Employment Support Officer employed by the Local Employment Centre (LEC) violated the complainant's right to be treated equally without discrimination based on sex, as well as his right to dignity.

During a meeting organized by the MTESS through a LEC, the complainant mentioned to the team leader of the Employment Support Officers that he was interested in a position as a home support worker. The next day, his assigned Employment Support Officer left a phone message saying that, while a posting was available, the employer specifically needed to have this position filled by a woman.

At the hearing, the Business Support Officer confirmed that the employer had said that the organization was looking for a woman to fill this position. This was because the clients were almost entirely female and they were less comfortable with the idea of a male home support worker. The employer, for its part, acknowledged that it had already mentioned to the LEC officers that it had a need for a particular sex, despite the fact that the positions are open to both sexs.

What Did the Tribunal Decide?

The Quebec Charter of Human Rights and Freedoms prohibits discrimination on the basis of sex in the provision of services ordinarily offered to the public, which in this case includes the job search services offered by the MTESS.

The Tribunal was asked to determine whether the MTESS and the Employment Support Officer violated the complainant's right to be treated equally, without distinction or exclusion based on sex.

The fact that the Employment Support Officer informed the complainant that the employer was ideally looking for female applicants, combined with the fact that she did not give him her contact information, could have led him to believe that he could not apply for the position. In so doing, the MTESS denied the complainant's right to obtain one of the services offered, namely receiving a potential employer's contact information, without discrimination based on his sex.

The Tribunal noted that even if the officer had no intention of discriminating against the complainant, the discriminatory nature of the conduct must be assessed on the basis of its effects, not its intention. In this case, the impact of the message left was that the complainant could not apply for the position sought because he was a man.

The Tribunal also rejected the argument raised by the LEC that it was only an intermediary and not the potential employer. Indeed, the Tribunal noted that the LEC still excluded the applicant on the basis of his sex, even though this selection criterion came from the employer. It was therefore equally liable for the discrimination. Consequently, the Employment Support Officer was also liable.

The Tribunal was also asked to determine whether the MTESS and the Employment Support Officer violated the complainant's right to the protection of his dignity, without discrimination and whether the complainant was entitled to compensation as a result of discrimination.

On this, the Tribunal concluded that access to employment assistance services, without discrimination, is intimately linked to a person's dignity and self-esteem. Being in a precarious situation, the complainant wanted to play a useful role in society, and was hindered in his intention.

The Tribunal set its award for moral damages suffered by the complainant at $2,750, but refused to award punitive damages because of the absence of intentional fault. In addition, the Tribunal ordered the MTESS to provide employment discrimination training to the LEC employees.

Takeaway Points

During the recruitment and hiring process, employers need to be aware that their preferences, including sex or other preferences, may be considered discriminatory pursuant to human rights legislation, and, depending on the circumstances, not justifiable or defensible. For intermediaries and employment agencies, they may also be liable if they apply a discriminatory hiring criterion that is not defensible, when they provide services.

Footnote

1. Commission des droits de la personne et des droits de la jeunesse (Émond) v. Attorney General of Quebec (Ministère du Travail, de l'Emploi et de la Solidarité sociale), 2021 QCTDP 8.