The Cost of Pre-Employment Discrimination

Employers are often unaware that human rights protections extend to not only the protection of employees, but to job applicants in the pre-employment stage as well. The risk of pre-employment discrimination is particularly overlooked when application forms or interviewers ask seemingly innocuous questions which elicit information based on a protected ground.

This risk was highlighted by the Human Rights Tribunal of Ontario (the “Tribunal”) in Haseeb v Imperial Oil Limited, 2018 HRTO 957 (the “Liability Decision”) and 2019 HRTO 1174 (the “Remedy Decision”).

Haseeb v Imperial Oil Limited

In this case, the applicant, Muhammad Haseeb, was an international student at McGill University when he applied for a job as an engineer with the respondent, Imperial Oil Limited (“Imperial”). Imperial’s hiring policy required that, to be considered for employment, all entry-level engineering candidates be eligible to work in Canada on a permanent basis. When Mr. Haseeb submitted his application to Imperial, he was in Canada on a student visa and held neither Canadian citizenship nor permanent residency. Throughout the application and interview process, Mr. Haseeb misrepresented his current eligibility to work in Canada on a permanent basis. However, upon his graduation, Mr. Haseeb expected to obtain a work permit for 3 years under a postgraduate work permit with no difficulty. He further anticipated that he would attain permanent residency status prior to the expiry of his work permit and thus be able to work in Canada indefinitely.

Given that Mr. Haseeb was ranked first among the job candidates, Imperial made Mr. Haseeb an offer of employment, conditional on him providing proof of the ability to work in Canada permanently. When Imperial asked for proof of citizenship or permanent residency, Mr. Haseeb could not provide it. As a result, Imperial rescinded the offer.

Mr. Haseeb brought a human rights complaint against Imperial on the basis that he was discriminated against on the protected ground of citizenship.

Imperial argued that the citizenship or permanent resident status was a bona fide occupational requirement (“BFOR”) for the entry-level position because by hiring an applicant without citizenship or permanent residency status, Imperial would risk losing its investment of time and money in training someone who cannot stay in the country indefinitely. Imperial also argued that Mr. Haseeb’s offer of employment was rescinded because of his dishonesty, not his lack of citizenship.

In the Liability Decision, the Tribunal held that Imperial’s hiring policy was discriminatory, the permanency requirement was not a BFOR, and that while Mr. Haseeb may have been dishonest, it was not the sole reason that the offer was rescinded; it was also rescinded because of Mr. Haseeb’s lack of citizenship or permanent residency status.

In the Remedy Decision, the Tribunal ordered that Imperial pay Mr. Haseeb $120,360.70 as follows:

  • $101,363.16 as compensation for lost income (the difference between the income he would have earned at Imperial and the income he actually earned at the company where he successfully gained employment);
  • $15,000 in damages as compensation for injury to dignity, feelings and self-respect; and
  • $3,997.54 in pre-judgment interest.

Applicability of Decision to Western Provinces

The result of this case may have been different had it been argued in one of the Western Canadian provinces given that “citizenship” is not a protected ground in British Columbia, Alberta, Saskatchewan or Manitoba. Although the Western Canadian provinces do not specifically list “citizenship” as a protected ground in their human rights legislation, asking job applicants about their citizenship could lead to the collection of information under other protected grounds such as ancestry, race (or perceived race), colour (British Columbia, Alberta, Saskatchewan, Manitoba) or  nationality (Saskatchewan and Manitoba). For example, asking an applicant to reveal citizenship could lead a non-Canadian applicant to disclose place of origin.

Further, the Liability Decision clarifies an employer’s requirement to obtain proof of an employee’s eligibility to work in Canada at the outset of the employment relationship. An employer is required to ask an employee to provide his or her social insurance number (“SIN”) within three days of the employee’s start date, which is proof of eligibility to work in Canada. Employers are not required to ask an employee for his or her SIN prior to the commencement of employment, and employers are not, at any point, required to confirm an employee’s ability to work in Canada permanently. The Tribunal confirmed that an applicant need not possess a SIN during his or her job search process or at the time he or she accepts a job offer. An employee’s requirement to furnish his or her employer with a SIN does not arise until employment has actually commenced. As such, an employer requiring that a job applicant provide his or her SIN at the job application stage may inadvertently elicit information relating to an employee’s citizenship, nationality or place of origin.

Key Takeaways

  • This case serves as a reminder that employers that ask questions in the pre-employment stage that elicit information on protected grounds risk exposure to liability, particularly where the applicant is not successful. Employers can be found to have discriminated against an individual at the hiring stage even where there were other (non-discriminatory) factors that were taken into consideration in deciding not to hire an individual.
  • Employers should ensure that hiring policies do not favour one group of people over another and be careful not to inadvertently create categories of “eligible” and “ineligible” applicants which may screen out certain applicants based on a protected ground.
  • This case also serves as a reminder that asking a job applicant to furnish his or her SIN earlier than required (within three days of the first day of employment) may have the unintended consequence of revealing an applicant’s citizenship status, nationality or place of origin, and place the employer at a greater risk of a human rights complaint if an applicant is not hired after revealing this information.

Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.