Most employers know that it is illegal to discriminate against employees based on protected grounds such as age, race, or sex under the Ontario Human Rights Code (the “Code”), and that asking job applicants questions about protected grounds during recruitment can expose them to liability, but many employers are not aware of how seemingly innocuous job requirements can be discriminatory because of how they relate to lesser known protected grounds, such as citizenship.
Similarly, many employers are aware that they can be ordered to pay substantial damage awards to a worker who has been discriminated against for injury to their dignity, feelings, and self-respect, but few realize that they may also be liable for all wages that the employee would have received “but for the discrimination”. In practice, this means that employers may be liable for all of the wages that an employee or job applicant would have received from the time of the alleged discrimination until their human rights Application is resolved, less any wages the employee or job applicant earned from alternate employment after the alleged discrimination. Since cases can take upwards of a year or more to be adjudicated in the Ontario Human Rights Tribunal (“HRTO”), if found liable, employers may face having to pay significant amounts for an employee’s lost wages.
Haseeb v Imperial Oil Limited [Haseeb], a relatively recent decision by the HRTO, illustrates these lesser known aspects of human rights law in the employment context, and therefore serves as a valuable case study for employers to understand the nuances of their obligations under the Code and the potential consequences for failing to meet them.
In Haseeb, the HRTO found that Imperial Oil (“IO”) discriminated against a job applicant, Mr. Haseeb, on the basis of citizenship by requiring him to be “eligible to work in Canada on a permanent basis” in order to be hired, contrary to the Code. Consequently, the HRTO ordered IO to pay Mr. Haseeb over $120,000 in damages, with over $101,000 accounting for the income that Mr. Haseeb would have earned over a 4-year period had IO not refused to hire him for a discriminatory reason.
Haseeb v Imperial Oil Limited
Mr. Haseeb was an international student in his final year of studying engineering at McGill University when he applied for a Project Engineer position with IO. As an international student attending a Canadian university, Mr. Haseeb was eligible for an “open” postgraduate work permit (“PGWP”) upon successful completion of his degree which would entitle him to work full time for any employer in Canada for three years, which could be renewed so long as he remained employed.
However, Mr. Haseeb learned from more senior students that IO had a practice of requiring graduate engineers to have Canadian citizenship or permanent residency in Canada to be eligible for their permanent full-time Project Engineer positions (the “Permanence Requirement”). Consequently, Mr. Haseeb repeatedly lied to IO when he was asked about whether he was “eligible to work in Canada on a permanent basis” in his job application and interviews, so that he would not be screened out as “ineligible”.
IO ranked Mr. Haseeb as the top candidate for the Project Engineer position, and extended him an offer of employment that was conditional upon him submitting “proof of his eligibility ‘to work in Canada on a permanent basis’ by way of (1) Canadian birth certificate (2) Canadian citizenship certificate or (3) Canadian certificate of permanent residence” by a stipulated deadline.
Mr. Haseeb was unable to provide the proof required by IO to accept the job offer and admitted to IO on the day before the deadline that he was not a permanent resident. About a month after the deadline passed, IO sent Mr. Haseeb a letter rescinding the offer because he did not meet the Permanence Requirement.
Consequently, Mr. Haseeb filed an Application with the HRTO against IO, alleging that it discriminated against him with respect to employment on the basis of citizenship, among other grounds that were later dropped, contrary to s.5(1) of the Code. In response to his Application, IO claimed that it actually rescinded the job offer because of Mr. Haseeb’s dishonesty with respect to the Permanence Requirement throughout the hiring process.
Ultimately, as stated above, the HRTO found that the Permanence Requirement was discriminatory, and that IO discriminated against Mr. Haseeb on the basis of citizenship by refusing to hire him because he could not meet the Permanence Requirement.
In reaching this conclusion, the HRTO rejected IO’s argument that the Permanence Requirement did not discriminate on the basis of citizenship because permanent residents that do not have Canadian citizenship could fulfill the requirement. The HRTO stated that the fact the Permanence Requirement distinguished people on the basis of citizenship and permanent residency was immaterial because the Supreme Court of Canada made it clear in Meiorin that a member of a protected group “need not demonstrate that all members of that class are disadvantaged” by a distinction relating to a protected ground to establish discrimination.
Similarly, the HRTO rejected IO’s argument that it had not discriminated against Mr. Haseeb on the basis of citizenship because his dishonesty during the recruitment process was the reason that he was not hired. The HRTO found that the evidence did not support that Mr. Haseeb’s dishonesty was the sole reason for his non-hire, because it found that the Permanence Requirement itself amounted to a breach of the Code, and Mr. Haseeb would not have had a reason to be dishonest with IO but for this discriminatory requirement.
Finally, the HRTO rejected IO’s defense that the Permanence Requirement was a Bona Fide Occupational Requirement (“BFOR”) that it adopted because it would lose the “huge” investment it made into training Project Engineers if they became ineligible to work in Canada in the future. In reaching this decision, the HRTO held that the broad BFOR defence under s.11 of the Code applies only to “constructive” or “adverse effects discrimination” (where a facially neutral rule disproportionately disadvantages a protected group) and that the narrow BFOR defence under s. 24 of the Code in respect of “direct discrimination” (where a rule explicitly distinguishes between people based on a protected ground) does not apply to differential treatment on the basis of citizenship, as it is not one of the grounds enumerated in the section for which the defence is available. Therefore, since the HRTO found that the Permanence Requirement amounted to “direct discrimination” (because it explicitly distinguished between applicants on the basis of citizenship) it ruled that BFOR defence was not available to IO in the circumstances.
In the alternative, the HRTO also held that, even if the BFOR defence were available, that IO had failed to establish that the Permanence Requirement was a BFOR. The HRTO found that the Permanence Requirement could not even be characterized as an “occupational requirement” for the purposes of the Code because “occupational requirements” relate to “the functions an employee must fulfill to carry out her or his practical, daily tasks safely and efficiently”, and the Permanence Requirement was not required for any specific task to be performed by Project Engineers. Moreover, the HRTO noted that IO’s contention that the Permanence Requirement was necessary was undermined by the fact that it had waived the Permanence Requirement on numerous occasions, including for one of Mr. Haseeb’s interviewers, as well as for an international student that IO later hired instead of Mr. Haseeb.
Therefore, the HRTO awarded Mr. Haseeb $15,000 in damages for the injury to his dignity, feelings, and self-respect, over $101,000 for lost wages, along with pre-judgement interest, for a total of over $120,000.
Takeaways
Haseeb provides a striking example for employers of how a seemingly innocuous job requirement can run afoul of human rights law and expose them to substantial liability.
As most employers know, and as noted by the HRTO in Haseeb, employers are legally required to verify that workers are eligible to work in Canada within three days of them beginning employment. The reason that this is not discrimination on the basis of citizenship is that s. 16 of the Code provides that “a right under Part I [of the Code] to non-discrimination because of citizenship is not infringed where Canadian citizenship is a requirement, qualification or consideration imposed or authorized by law”. Crucially, while employers are required by law to ensure that workers are eligible to work in Canada, they are not required or authorized by law to require employees to be permanently eligible to do so. As Haseeb illustrates, failure to recognize this nuanced distinction can result in discriminatory hiring practices that create substantial exposures for employers.
Moreover, Haseeb also demonstrates how the HRTO’s power to award an employee with any lost wages resulting from discrimination can result in massive damage awards against employers, which many employers do not realize. As discussed above, Mr. Haseeb was awarded over $101,000 for the wages he would have earned by working for IO in the 4-year period from when IO discriminated against him until the resolution of his human rights Application. Therefore, employers should bear in mind how severe the penalties can be for failing to meet their obligations under the Code when evaluating the compliance of their recruitment practices, and should consider seeking legal advice in the face of uncertainty. Doing so will not only reduce an employer’s legal exposures, it will also prevent the serious harm to their reputation that can result from being found to have engaged in discriminatory practices.
Finally, as a best practice, employers would be well advised to include a condition in all offers of employment stipulating that the offer is conditional upon all representations made by the applicant in their application, resume, and interviews being truthful. By doing so, employers can reserve the right to rescind an offer or terminate an employment relationship where they discover that an applicant was dishonest during the recruitment process, which can reduce employers’ exposures. However, such a clause would be unlikely to assist an employer in a situation like Haseeb, where the employee is untruthful in respect of a discriminatory job requirement, and as such employers should also ensure that their hiring practices do not infringe on Code-protected grounds.
This blog is provided as an information service and summary of workplace legal issues. This information is not intended as legal advice.
