HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Jerry Marko
Applicant
-and-
Wal-Mart Canada Corp.
Respondent
DECISION
Adjudicator: Eric Whist
Indexed as: Marko v. Wal-Mart Canada Corp.
APPEARANCES
Jerry Marko, Applicant ) Self-represented
Wal-Mart Canada Corp., Respondent ) Joel Thomas, Counsel
1This Application was filed on July 22, 2010, under the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges discrimination in employment on the basis of age.
2A hearing was held on October 3, 2011. I heard testimony from Mr. Marko, the applicant, and Taylor Skoff and Kirk Sawyer, two managers for the respondent, Wal-Mart Canada Corp. I also had before me documentary evidence disclosed by the parties which included documents related to how Mr. Marko was evaluated by the respondent during a job application and interview process.
SUMMARY OF KEY EVIDENCE
3Mr. Marko applicant testified that he was 60 years old when he applied in June 2010 for a store associate position in the respondent’s soon-to-be-opened store in Keswick, Ontario (the “Keswick store”). This was a large-scale job competition with the respondent seeking to hire for several hundred store associate positions.
4Mr. Marko testified that he applied by filling out an on-line application form. He testified that on July 5, 2010 he was contacted by Gavin John, a manager with the Keswick store, who proceeded to interview him on the telephone for approximately 10 to 15 minutes. Mr. Marko testified that Mr. John then asked him to attend an in-person interview on July 20, 2010. Mr. Marko stated that he asked Mr. John if he could provide his resume at the interview on July 20, 2010, and was told he could. Mr. Marko testified that he believed providing his resume was important as he did not believe his on-line application recorded all his relevant work experience and that he wanted to provide an up-to-date resume at the time of his interview.
5Mr. Marko testified that the job interview process which took place on July 20, 2010, involved a number of other job candidates. He testified that he participated in a “speed interview” in which he had 90 seconds to answer each of a series of questions. Mr. Marko testified that he felt he performed well in the interview and to support this contention he referred to the respondent’s disclosed “Behavioural Interview Questions” evaluation forms and a “Behavioural Interview Scoring Guide” that indicated that Mr. Marko had scored an average of four out of five on the six behavioural interview questions he had been asked.
6Mr. Marko testified that he also participated in a role-playing exercise with other job applicants and felt that he did all right in the role play having performed “no worse than the other participants”. Mr. Marko testified that during the interview process on July 20, 2010 he also attended a presentation on the benefits of working for the respondent. Mr. Marko testified that he attempted to provide Kirk Sawyer, the general manager for the Keswick store, with a copy of his resume on July 20, 2010, but that Mr. Sawyer refused to accept it. Mr. Marko testified that he received a telephone call from the respondent on July 21, 2010, to say he had not been chosen as a store associate.
7I heard testimony from Mr. Marko and Mr. Skoff about the age distribution of persons hired as store associates for the Keswick store. Mr. Marko referred to a May 13, 2011 letter from the respondent to Mr. Marko which provided some statistics that the applicant stated were significant. Mr. Skoff later testified that he had generated these statistics in preparation for the hearing, based on the respondent’s employment records.
8According to the May 13, 2011 letter, 1,665 persons applied for store associate positions in the Keswick store prior to its opening and 253 persons were hired. The letter indicates that 11 of the persons who were hired were over 60 years old, a further 21 were between 55 and 60 years old and a further 35 persons were between the age of 50 and 55. Mr. Marko calculated that this meant that approximately 26% of the store associates hired at the Keswick store were over the age of 50. Mr. Marko testified that this meant that 186 of the persons hired were under the age of 50 and that based on his personal observations from having visited the Keswick store he believed that at least half of these 186 persons were “very young”. Mr. Marko stated that these younger persons would not have been as qualified as he was for the job and that if the respondent had accepted his written resume it would have understood how much experience he had in the retail sector. Mr. Marko stated that any reasonable person would see from his resume that he was well-qualified and would conclude that the reason he was not hired was because of his age. He further suggested that he was not appropriately considered because the respondent had already determined that it had hired enough “old people”.
9Mr. Marko testified that the respondent did not respect human rights and he disclosed with his Reply a number of media references to the respondent’s alleged human rights violations in other jurisdictions. The parties later provided submissions on the relevance of these materials.
10Mr. Skoff and Mr. Sawyer provided an overview of the respondent’s recruitment and selection process, how the process was used to hire store associates for the Keswick store and how Mr. Marko was evaluated in this process. Mr. Sawyer testified that he worked in the retail sector for 15 years before joining the respondent in June 2008. He became the general manager for the Keswick store in May 2010. He testified that he has extensive experience in hiring staff. Mr. Skoff testified that he has worked for the respondent since 1999 and is currently a general manager in another one of the respondent’s stores.
11Mr. Skoff testified that in 2010 he worked in the respondent’s head office on a number of projects including one to introduce a new recruitment process for the respondent. He testified that the previous recruitment process was traditional in nature, and involved persons submitting their resumes and applications in response to a posted advertisement followed by individual interviews. Mr Skoff testified that in 2010 the respondent piloted a new recruitment process that was later used to staff the Keswick store and that given its success, is now being used more widely by the respondent. Mr. Skoff testified that the new recruitment process is considered to be more environmentally friendly and more effective in hiring suitable staff.
12Mr. Skoff testified that job applicants now apply on-line. Applicants fill in an application form which allows an applicant to provide their employment history. Mr. Skoff testified that applicants can also upload their resume, if they so choose. Mr. Skoff testified that this paperless process is more environmentally friendly.
13Mr. Sawyer testified that for the Keswick store associate job competition, the respondent set up a satellite office which allowed people to drop in and apply in-person but noted that those persons who were interested were still required to apply on-line by means of computers that were made available by the respondent. He testified that a total of approximately five persons did this.
14Mr. Skoff and Mr. Sawyer testified that in addition to filling in an on-line application form applicants were required to respond to an 80 question on-line questionnaire which was then scored. Only candidates who achieved a particular score on the questionnaire qualified for a further telephone interview.
15Mr. Skoff and Mr. Sawyer testified that the telephone interview had two parts, the first called a pre-screening interview. In the pre-screening interview applicants were asked about their previous work history, their reasons for leaving previous employment, their availability and their interest in working for the respondent. As part of this process the interviewer could review an applicant’s application form and the information provided therein. I note the written prompt on the form for the interviewer that states “Let’s begin by reviewing details of your application beginning with your most recent position…”. Applicants who were considered to have met a number of requirements including “showing no significant gaps or concerns with gaps in employment” and “Interest and enthusiasm for working at Wal-Mart” would proceed to a further telephone interview. Mr. Marko’s pre-screen interview form was before me showing the basic questions he was asked and his recorded responses. Mr. Marko was screened through to a further telephone interview.
16Mr Skoff testified that at the further telephone interview applicants are asked a series of behavioural questions and that that an overall average score of three or better for each of these questions means an applicant will proceed to an in-person group interview. I had before me the “Behavioural Interview Question” evaluation forms for Mr. Marko and the “Behavioural Interview Scoring Guide” for Mr. Marko that indicate that he scored an average of four out of five for each of the answers he provided.
17Mr. Sawyer noted that one of the disclosed Behavioural Interview Question evaluation forms records that Mr. Marko was asked to describe a situation in which he had to accept and deal with change. On this form the interviewer records Mr. Marko as responding:
“Change is inevitable. Listen, adapt and react accordingly” “was let go at age 59. Has adapted by starting own contracting firm.”
18Mr. Marko scored “4” on this answer. The respondents submit that this is relevant as it indicates that although Mr. Marko’s age was clearly revealed during this interview it did not result in his being screened out of the job competition.
19Mr. Sawyer testified that in the respondent’s revised recruitment process information on a person’s initial application form (including employment history) is only considered by the respondent at the telephone pre-interview stage. He stated that the scores achieved during the further telephone interview when applicants answer the behavioural questions only qualify an applicant for the further group interview. He testified that hiring decisions are based only on how job applicants perform at the group interview stage.
20Mr. Sawyer testified that out of the initial pool of 1,660 applicants for the store associate positions at the Keswick store approximately 600 persons were selected to participate in the group interview process. He testified that each group interview involved a group of approximately 20 job applicants and that these interview sessions were conducted twice a day for approximately three weeks.
21Mr. Sawyer stated that the group interview session took a little less than two hours and began with him conducting a 15 to 20 minute introduction followed by an ice-breaking exercise which involved a job applicant introducing a fellow applicant to the group. Mr Sawyer testified that applicants were observed and evaluated during both his introduction and the ice-breaker by store managers who considered how individual applicants were participating. Applicants were observed to determine whether, for example, they were paying attention, whether they were energetic and whether they participated in the respondent’s “cheers”. I had the “Ice Breaker and Introduction Exercise” Evaluation sheet for Mr. Marko before me that records that he participated in both the cheers that were conducted. The evaluation sheet does not record any negative behaviours or issues of concern.
22Mr. Sawyer testified that the group interview process also included a presentation to the participating applicants on the benefits of working for the respondent and noted that while this session was not formally evaluated, it was the discretion of the presenter of this session to record if she observed something “critical”. There was no evidence to suggest that Mr. Marko’s behaviour during this session was evaluated.
23Mr. Sawyer testified that there were two principal evaluation sessions, a “speed meeting” and a role play. He testified that the speed meeting consisted of six managers sitting opposite six applicants with each manager asking an applicant two predetermined questions to be answered within 90 seconds before the applicants switched seats to be asked another two questions by another manager within the same time frame. At the end of the speed meeting each applicant would have been interviewed by each of the six managers and would generally have been asked 12 questions.
24I had before me six evaluation sheets from the speed meeting exercise. The evaluation sheets list the questions and record how the managers summarized the answers given by six applicants. The questions are about workplace issues and include questions such as “Imagine that a customer asked you a question that you did not know the answer to, what would you do in this situation?” and “What does good customer service mean to you? How would you ensure that you provide good customer service to others?” The evaluation sheets also show how the responses of the applicants were scored.
25The scoring is on a “1” to “5” numerical scale (“5” being best) with a further “NE” designation to indicate when an applicant had provided “No Evidence” for an answer. NE is a lower score than “1”. Mr. Sawyer reviewed the evaluations given to Mr. Marko and one other applicant on the same evaluation sheets who, Mr. Sawyer testified, was the only applicant from this group of six who was eventually hired. Mr. Marko scored one “4”, four “3”s, four “2”s and one “NE”. The other applicant scored five “4”s, four “3”s and one “1” (Note: one manager did not assign grades hence there are 10 recorded scores rather than 12).
26Mr. Sawyer stated that these scores were not formally tabulated to be part of an overall numerical grade for applicants but that they did factor into the final evaluation of the job applicants.
27Mr. Sawyer testified he and his lead assistant conducted the other principal evaluative exercise which was a role play. Several different role plays were used. Mr. Sawyer testified that one was about gossip in the workplace. Mr Sawyer testified that two small groups of applicants would be given two different role play scenarios with each being given five minutes to prepare the scenario which they would then act out for the other group. The other group would then ask questions and give feedback about how the role play was presented. The other group would then present its role play. Mr. Sawyer stated that he or his assistant would observe and evaluate how applicants participated in the whole role play process, from when they would first discuss how to present their role play to when they were responding to the other group’s presentation. Mr. Sawyer testified that he felt this was the most important component of the job application process in that it allowed the respondent to see how the applicants interacted with each other in a simulated work-like environment. Mr Sawyer testified that he felt the role play was a good indicator as to how an applicant would perform on the job.
28I had before me the “Role Play and Scenarios Exercise” evaluation form for the applicant (and two other applicants) that was filled in by Mr. Sawyer’s lead assistant. It records two comments for the applicant. It states that he “did not follow instructions about splitting into group” and “did not allow other group members to give input”.
29Mr. Sawyer testified that at the end of the group interview sessions all the job candidates would reassemble, at which time a second cheer was conducted and a commitment was made to inform applicants within 24 hours as to whether they would be offered employment.
30Mr. Sawyer testified that he does not recall Mr. Marko approaching him at anytime on July 20, 2010, to provide his resume. He testified that if this had occurred he would have told Mr. Marko that he would not accept a paper resume as the expectation was that all documents needed to be submitted on line.
31Mr. Sawyer testified that after the end of the group interview session there would be a meeting of all the managers who had participated in evaluating the applicants. There were usually nine or ten managers. Each manager was expected to provide copies of their evaluation forms to the other participating managers. Mr. Sawyer testified that each manager was given two paddles, one saying “Yes”, the other “No” and that after an applicant’s name was called everyone would simultaneously put up a paddle to indicate whether they were saying yes or no to that applicant being hired, based on their own evaluations. Mr. Sawyer stated that if the decision was not unanimous there would be a discussion about the merits of the candidate in question. Mr. Sawyer testified that there was no consideration given to a person’s application or resume nor to how he performed on his or her telephone interview; the hiring decision was based exclusively on how the applicant performed during the group interview process. Mr. Sawyer testified that it was only later, after a decision was made to hire a person, that there would be a review of their resume to see what specific store associate position that person may be best suited for (e.g. cashier).
32Mr. Sawyer testified that he did not recall what took place when the applicant was evaluated. I did have a form before me showing six out the 21 persons interviewed in the applicant’s session were hired.
33Mr. Sawyer concluded his testimony stating he believed the group interview process used to staff the Keswick store worked well and that this was demonstrated by a recent survey conducted with store associates. He also testified that while the process did not include a review of a person’s work experience it did allow a person with experience and skills to showcase their skills.
DECISION
34I find, based on the evidence before me, that the applicant was not discriminated against on the basis of age. I am of the view that the process used by the respondents to select candidates is not discriminatory and it is Mr. Marko’s performance in the job application process that accounts for why he was not hired. My reasons follow.
ANALYSIS
35I am of the view that Mr. Marko’s concerns are principally twofold. One, it is apparent from Mr. Marko’s testimony that he put a great deal of stock in his work history as evidence of his ability to work in a retail environment and was concerned that the respondent did not duly consider his resume and his work experience. In my view, he was alleging that the way in which the hiring process was structured was unfair and discriminatory. Two, he did not accept the results of the hiring process given his sense of his own performance during the process, his work experience in the retail sector and his observation that many of the persons hired as store associates were very young and, in Mr. Marko’s view, obviously less experienced.
36Mr. Marko clearly emphasized having relevant work experience. However, I am of the view that the respondent’s job application process deliberately de-emphasised the traditional method for presenting evidence of one’s suitability for a job by means of a resume or by referring to one’s work experience. I do not find the respondent’s failure to consider Mr. Marko’s resume and his work history in the way Mr. Marko thought it should to be evidence of age discrimination.
37The respondent’s job recruitment process does allow applicants to provide a resume and work history but that this information is only considered at a very early stage of the process. The evidence of Mr. Skoff and Mr. Sawyer was that applicants could provide their work history on their application or upload a resume into their application. This is entirely credible, in my view, because the further evidence before me was that the next step in the respondent’s application process, the telephone pre-interview, involves explicit questions about an applicant’s work history based on a review of the application form. Mr. Marko’s work history was considered at this stage of the recruitment process and he was successful in moving on to the next step in the respondent’s recruitment process.
38The evidence before me is that after this point there is no part of the respondent’s recruitment process that involves an applicant being questioned about their resume or their work history. Questions on the speed meeting exercise such as “When starting a new job how do you adopt to the responsibilities of the job and expectations of your manager?” and having applicants participate in role plays on topics such as workplace gossip indicate that the emphasis of the recruitment process was on requiring an applicant to explain or demonstrate how they would respond to or manage a situation that the respondent considered to be relevant to their responsibilities as a store associate. I do not see that this process is unfair or disadvantages the applicant because of his age. I agree with the respondent that while the group interview process did not involve reviewing applicants’ work experiences, the extensive work experience of applicants such as Mr. Marko would be a potential asset in responding to many of the questions and scenarios raised in the application process.
39Mr. Marko did testify that he was told during his telephone interview that he could provide his resume at his group interview on July 20, 2010, but that when he tried to do so Mr. Sawyer declined to accept it, suggesting, in effect, that he was denied the opportunity to present information that would have been relevant to the respondent’s hiring decisions. I do not know why Mr. Marko may have been told that he could submit his resume on July 20 but I am satisfied that there was nothing discriminatory in a decision not to accept a resume at that time. The persuasive evidence before me is that a resume would not have been considered as part of any hiring decision at the time of the group interview.
40The applicant testified that he believed he did well in the group interview process. He testified that he scored an average of “4” for each question at his speed interview given the scores recorded on his “Behavioural Interview Questions Scorecard”. However, the applicant has mistakenly considered his scores for questions asked during his telephone interview with those given to him at his speed interview. The documentary evidence before me is that the behavioural interview questions were asked during the telephone interview and that it is the “Speed Meeting Exercise” scores that reveal how the applicant did on this portion of his evaluation. I do not see how his recorded scores (one “4”, four “3”s, four “2”s and one “NE) can be considered good when contrasted with the scores of the only successful candidate from this group (five “4”s, four “3”s and one “1”).
41The applicant testified that he felt he did no worse on his role play than any other participant. This is not a particularly positive self-evaluation. However, more importantly, the recorded evaluation for the applicant from his role play was that he did not follow directions and he did not allow others to participate. These are clearly negative assessments.
42I am satisfied that in a competition in which there were 1660 applicants and only 256 persons hired that the evaluations recorded for Mr. Marko’s speed meeting and his role play – evaluations made by a number of different evaluators – is a persuasive non-discriminatory reason for why he was not hired and more probable than his allegation that he was not hired because of is age.
43The applicant noted that over 25% of the store associates hired by the respondent were over 50 years of age. The applicant did not argue that this meant that the percentage of store associates that were older was disproportionately small and thus an indicator that the respondent discriminated against older workers. Rather, he argued that he was not hired because the respondent had met its quota for hiring older workers. I do not find, based on the evidence before me, that the applicant’s efforts to rely on statistics supports his case.
44The applicant did state that he had observed that a lot of the persons who were hired were very young, suggesting, it appears, that they would not have outperformed him in the interview process given his experience and qualifications. There is no evidence to support this bald assertion.
45The applicant referred to the respondent’s alleged human rights violations in other jurisdictions. This information is not relevant in determining whether the applicant was discriminated against during the job competition for the Keswick store.
46In summary I am satisfied that the respondent’s newly implemented recruitment process was not discriminatory and that the evidence before me is that the applicant did not perform particularly well in the group interview stage of this process. In my view the respondent has provided non-discriminatory reasons for why the applicant was not hired. Consequently, the Application is dismissed.
Dated at Toronto this 13^th^ day of October, 2011.
“Signed by”
Eric Whist
Vice-chair