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04 September 2019
In Moore v Ferro (Estate) (2019 HRTO 526) the Human Rights Tribunal of Ontario held that a law firm discriminated against an applicant because of his age and race, and by failing to investigate his discrimination complaint. The tribunal also found that the law firm had engaged in a reprisal. This decision is an important reminder for employers to be careful in how they assess and treat candidates during the recruitment process.
The applicant was 45 years old. He self-identified as a black man of Afro-Caribbean descent. He applied for a position at a law firm in Ontario and went through several interviews.
At the completion of the hiring process, the law firm told the applicant that he would not be receiving an offer. The applicant sent a five-page email to the firm alleging that the firm had discriminated against him because of his age and race. In the heated exchange of emails that followed, the principal lawyer at the firm made many abusive remarks to the applicant, including:
you would never have made it past your interview with me - regardless of where you come from or your genetic composition - you are surprisingly embarrassing and I would never have hired you to begin with.
The applicant filed a human rights complaint against the firm.
The tribunal said the following principles apply when assessing a claim of age or race discrimination:
The tribunal said the firm discriminated against the applicant because age had been considered by the firm in not making an offer. For example, in interview notes, one person had referred to the applicant as "older" and noted that other applicants were "young". The interviewers had also attributed positive characteristics to the younger candidates such as ambition, mental quickness, being opinionated and having good computer and software skills. According to the tribunal, this was evidence of reliance on stereotypes about older people. Turning to the allegation of racial discrimination, the tribunal held that the fact that only racialised applicants had attended group interviews was not enough to show that a different hiring process had been used for racialised candidates.
However, the tribunal held that the firm had discriminated on the basis of race by failing to take any steps to seriously address, investigate and properly respond to the applicant's complaint of discrimination, and by justifying its dismissive reaction by accusing the applicant of "playing the race card". The tribunal also found that the firm had engaged in a reprisal by responding to the applicant's allegations with abusive remarks, such as referring to the applicant as "a very angry and disappointed young man".
This decision was issued in Ontario but employers across Canada can learn from it. Employers should be mindful of how easily beliefs, biases and prejudices can taint the hiring process. In this case, the belief that younger candidates had certain positive traits that older candidates did not have contributed to the finding of discrimination. As such, employers should:
However, if an applicant raises allegations of discrimination employers should take them seriously and investigate them to find out whether further action should be taken.
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