sept. 29. 2014

Shocking communications with a job applicant cost employer $8,000 in damages

Bouraoui v. Ottawa Valley Cleaning and Restoration, 2014 HRTO 1303 (CanLII)

When an employer denied a job candidate's application with a text message saying, “I don't hire foreners I keep the white man working” (his spelling not mine!), the Ontario Human Rights Tribunal had no trouble finding that the job applicant experienced discrimination on the basis of race, color and place of origin.

Facts of the case

Malek Bouraoui left his resume at the office of Ottawa Valley Cleaning and Restoration in June 2013.

On June 4, he received a telephone call from someone named Jesse who identified himself as working for Ottawa Valley Cleaning and Restoration. Jesse started a phone interview, asking Bouraoui about his work experience, what country he was from and whether he was white or black. Bouraoui told Jesse that he was not from Canada, but was in shock by the question about his colour and could not answer. Jesse then said that he would send his decision by text message.

Bouraoui exchanged a number of text messages with Jesse that day. Among them:

"Try learning English you will have better luck I don't hire foreners [sic]; I keep the white man working”

"Go ahead have fun with that you told me fy that's what you get and I didn't say anything that can get me in trouble you are a former and I said that I keep the white man working so you go and waste your time and see how far this gets you they are going to laugh at you I can say whatever I want this is a very good example of why I don't hire foreners [sic] you waste peoples time with your bull shit so please go waste your day let me know how it goes for you”

"I didn't say anything that is racist all I said was I don't hire foreners [sic] and I hire white men so stop texting me take it how ever you want if you text me again it will be harassment and there is no law for what I said it's called freedom of speech in Canada maybe you would know that if you were a Canadian good by stop wasting my time I run a business I don't have for you get a life”

"And stop texting me and go file a complaint he will probably be a white man and he will probably laugh at you and tell you to go away”

You get the point.

Bouraoui launched a human rights complaint and explained that these communications hurt, humiliated and shocked him. He had never been exposed to such direct discrimination in his job search in Canada. [This is a very sad, but very telling statement]

After Jesse was notified of the complaint, he called Bouraoui to tell him that he had better withdraw the complaint or else he would retain counsel and defend himself and make Bouraoui repay the cost of the defence.

Bouraoui subsequently amended his complaint to add a claim of reprisal.

Decision

Given the documented text messages and the confirmed identity of their source, Jesse, the tribunal accepted Bouraoui's testimony as a truthful and credible recounting of the events.

There was no question that Ottawa Valley Cleaning and Restoration had discriminated against Bouraoui contrary to the section 5 (“employment”) of the Ontario Human Rights Code: Jesse's sole reason for denying Bouraoui employment was his race, colour and place of origin. Moreover, the Code clearly prohibits employers from making these types of inquiries during the interview process, so there was also an infringement under section 23(2) of the Code. In addition, the tribunal found the manner in which Jesse communicated the information was “egregious.”

However, the tribunal could not find evidence of reprisal because there was no threat to safety-only a comment about defending the complaint. Stating that a complaint will be defended is common and did not constitute a threat under the Code.

As a result of the discrimination, Bouraoui was awarded $8,000 as compensation for the infringement of the Code and injury to his dignity, feelings and self-respect.

Additionally, the tribunal ordered all owners and managers of Ottawa Valley Cleaning and Restoration to complete the Human Rights 101 eLearning Module prepared by the Ontario Human Rights Commission, which is available online at www.ohrc.on.ca/hr101/.

What can we take from this case?

This case is a stark reminder that the selection process itself has the potential for legal risk to the employer. In employment matters, including the hiring process, discrimination and harassment is prohibited in the Ontario Human Rights Code on the grounds of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed (religion), sex, sexual orientation, handicap (disability and perceived disability), age, marital status, same-sex partnership status, family status, record of offences, gender identity and gender expression. Employers cannot ask discriminatory questions that would constitute human rights violations. This means any question that relates to one of the prohibited grounds under human rights legislation. It is not just an individual question that is judged legal or illegal, but the implication and intent, and whether or not the question is asked in some cases to both genders.

An illegal question is one where the applicant is being asked to divulge information that has no bearing on the position applied for. An employer's questions, whether on the job application, in the interview, or during the testing process, must be related to the job the applicant is applying for. The focus should be, “What do I need to know to decide whether this person can perform the functions of this job?”

Some questions may sound legal but show prejudice and stereotypical attitudes. For example, as it relates to working women, “How many kids do you have?” “What are your childcare arrangements?” and “Are you married?”

Employers must recognize that human rights legislation places statutory limitations on the content of application forms, the pre-screening process, the interview, medical inquiries, and, under the employer's duty to accommodate persons with disabilities, even the right to hire an employee who is fit to perform the essential duties of the job.

Applicable human rights legislation can be complied with by assessing candidates based on the relevant aspects of the job, and not extraneous factors that could overlap with prohibited grounds of discrimination. This is the case when asking questions on the job application, during interviews, or when making final hiring decisions.

Employers are encouraged to explore the Human Rights 101 eLearning Module and other resources prepared by the commission as a training method.

In addition, employers should create anti-harassment and anti-discrimination polices and train all personnel of the company on their responsibilities and obligations under the law.

This was an extreme example of discrimination, but there is something all employers can learn. It is very important to educate management and hiring representatives about human rights, how to treat people who apply to work at your company (including existing employees) and how not to discriminate while performing their duties and representing the employer, or the employer may face stiff penalties.

Written with the assistance of Christina Catenacci