$120,000 award to a “non-employee.” A cautionary ruling on discrimination may require employment hiring policy review

Human resources managers are grappling with a recent ruling from the Ontario Human Rights Tribunal that set a precedent in discrimination policies and penalties. With damages assessed at $120,000, it is inevitable most employers — and their HR teams — will (or should) review and possibly amend their hiring policies. 

In the case, Mohammad Haseeb received an award of $120,000 in a discrimination charge against Imperial Oil. Mohammad Haseeb is a university graduate in engineering — and has never worked for Imperial Oil. [1]

Unlike discrimination claims against employers from employees, this action revolved around “withdrawal of an offer of employment.” In this case, Imperial Oil required applicants to be able to work in Canada. Mr. Haseeb was eligible for a work permit but was not a permanent resident or Canadian Citizen. 

Mr. Haseeb received a job offer based on his statement on his application that he was eligible to work on a permanent basis. The offer was subsequently withdrawn when he couldn’t provide either proof of citizenship or permanent residency. 

Many companies, to mitigate risk and ensure human rights compliance, are turning to outsourced HR experts, such as Pivotal Solutions, or employment lawyers.

Employer argues offer rescinded due to dishonesty

Initially, Imperial Oil claimed the offer was withdrawn due to dishonesty — rather than lack of status as a permanent resident. 

However, honesty is not a factor in a discrimination claim, according to this ruling. The key point, the tribunal decided, was that the employer chose not to hire Mr. Haseeb based on his residency status or citizenship. Since this is not a “bonafide occupational requirement,” the argument of dishonesty was not sufficient to avoid the claim of “discriminatory treatment.” 

To be clear, a “lie” on an application can be grounds for not hiring — not if the facts in question relate to discriminatory hiring practices. 

Four years compensation indicates the seriousness of the claim

If the prospective employee can make the case that they “would have been hired” except for discriminatory rules, the practice violates Ontario Human rights Law. Not only that, in this case, Mr. Haseeb argued that he should be compensated with four years in lost income, plus punitive penalties of $15,000.

Ontario Human Rights cases against employers often result in extensive damages where the ruling is for “discriminatory behaviour for vulnerable workers” — ranging from $200,000 to over $400,000. 

Call to action — HR policy and hiring practices review

Has your employee hiring policy been revised annually to reflect recent rulings from not only the Human Rights Commission but also the courts? Have you trained your recruiters in “best practices” for screening to protect the company from liability? 

The rules — and the rulings — are in constant flux. Unless you have a dedicated legal and HR team, consider working with outsourced HR experts, such as Pivotal Solutions.

NOTES

[1] Source: Financial Post feature>>


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