HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Jennifer Nielsen
Applicant
-and-
Armstrong Farm
Respondent
DECISION
Adjudicator: Jay Sengupta
Date: December 20, 2011
Citation: 2011 HRTO 2282
Indexed as: Nielsen v. Armstrong Farm
APPEARANCES
Jennifer Nielsen, Applicant ) Self-Represented
Armstrong Farm, Respondent ) Morley and Ruth Armstrong,
) Representatives
1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges discrimination with respect to employment on the basis of disability. The applicant is deaf and alleges that she was not hired to work on the respondent farm as a “working student” for reasons relating to her hearing impairment.
2The representatives of the respondent, the co-owners of the farm, Morley and Ruth Armstrong, deny discriminating against the applicant and point out that the decision not to continue to consider her résumé had been made in advance of having any knowledge of her deafness. They further state that when the applicant made them aware of her hearing impairment, Ruth Armstrong told the applicant that her deafness would create a safety risk in working with stallions to collect semen. In the alternative, the respondent farm owners argue that as the working student lives with them in their family home, they should be able to decide who they invite into their home.
3The first day of hearing was adjourned in order to ensure an ASL interpreter could be present to interpret during the proceedings. On the second day of hearing, I heard evidence from the applicant on her own behalf. She did not call any other witnesses. Mr. and Mrs. Morley and Ruth Armstrong testified on behalf of the respondent farm.
4For the reasons that follow, this Application is dismissed.
The Evidence
5The applicant gave evidence that she was born into a farming family and has been living and working around horses for almost all her life. She described working in the industry in a number of capacities over the years. Specifically, she testified that she has worked in horse farms and race tracks. She has years of experience grooming, training, selling and riding horses in those settings.
6She testified that she was very interested in the job as advertised and saw it as a way to develop further and become a more accomplished equestrian. She tried to apply through the website and had some trouble. Eventually she sent her résumé by email. When she heard nothing, she found out the address of the farm and went out there with her ex-boyfriend and dropped off a résumé. Although neither of the Armstrongs were present, her ex-boyfriend spoke with a family friend and left the résumé with her.
7A week later, as she still had not heard back from the respondent, she sent another email; this time with a covering letter in which she identified that she was deaf and asked for a response.
8She did receive an email in response from Ruth Armstrong with the following text:
Thank you for your interest. However, I feel a hearing impediment unfortunately might be a safety risk working with stallions. Good luck.
9She testified that she was devastated, that she found the email response “disturbing”, “disappointing” and that it caused her to believe that her years of effort towards trying to work in the field were “rendered meaningless”. She wrote back to tell Ruth Armstrong that she did not agree with her assessment that her deafness would cause a safety risk, that she worked every day with stallions, albeit not collecting semen, and that she wanted to be given a chance to show what she could do.
10Morley and Ruth Armstrong gave evidence that they own and operate a family farm in the Orangeville area. They own top-quality breeding and competition stallions and Ruth Armstrong has been named the leading female rider two times in a row by the Ontario Horse Trial Association.
11They began the practice of having working students living with them and helping Ruth Armstrong some years ago. The positions are in high demand. They have applicants from all over the world. They have had students from Europe and the United States. The students are allowed to bring their horses and are given free board and lodging. They also receive free instruction from Ruth Armstrong as their compensation. In exchange, they work on the farm and assist in the breeding operation run primarily by Ruth Armstrong. Occasionally, when a student stays for over a year, they are given a small stipend and even more rarely, a share in a horse.
12The farm receives hundreds of responses to its advertisements on Yard and Groom and the respondent entered into evidence a number of pages of entries showing a large number of applicants. Ruth Armstrong said that she reviews the applications as they come in and decides which applicant will get a follow-up. She has no memory of the applicant’s entry through the website and concludes it must not have been memorable and the applicant certainly was not on her list of people she contacted subsequently.
13Ruth Armstrong testified that, while she does not mean to be insulting to the applicant, her résumé did not stand out and, in fact, when she subsequently reviewed it again after receiving it with the email sent to her by the applicant, found it to be “subpar”.
14She noted the applicant did not have experience breeding stallions or in the riding events for which Ruth Armstrong provides instruction. Her view is that although the applicant has done a lot of work and handled stallions, breeding stallions is not the same thing and can be a dangerous proposition. The breeding process is a team effort that requires instantaneous communication. There are many variables: the stallion, the mare and the ever-changing environment.
15Collecting semen from stallions for shipping is equally problematic. The stallion is in a stall with a “phantom” and a number of people who need to be able to communicate quickly with each other. Often one or the other person has their back to the other. If the process does not work out, the horse could lose his erection, prematurely ejaculate, or become sexually frustrated and savage handlers. None of these are desired outcomes as the semen is usually being collected for breeding purposes.
16Mrs. Armstrong testified that she does not want drop-ins and she was not pleased that the applicant showed up uninvited. When the applicant continued to communicate by email following the uninvited visit, Mrs. Armstrong tried to be polite by not pointing out the deficiencies in her résumé and work experience and the response that referenced the applicant’s hearing issues was meant as a professional courtesy. Mrs. Armstrong also testified that her email referenced the applicant’s hearing issues because she believed she should point out a safety risk as a certified coach.
17Although there was some evidence about the challenges of working as a coach and teaching riding skills using hand signals or flags, that evidence is not particularly relevant to the issues at hand and I have not reproduced it in this Decision.
Analysis and Findings
18Sections 5(1) and 9 of the Code provide as follows:
5(1). Every person has a right to equal treatment with respect to employment without discrimination because of… disability.
- No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.
19“Disability” is defined in section 10 of the Code, in part, as follows:
“disability” means,
any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device…
20Section 11 of the Code reads as follows:
A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,
(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or
(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.
21The parties do not dispute that the applicant’s deafness constitutes a disability within the meaning of the Code.
22The Code provides that discrimination may occur whether someone is treated in a disadvantageous manner based on a prohibited ground of discrimination (“direct discrimination” under s. 5) or where a requirement, qualification or factor which is not discriminatory on its face results in the “exclusion, restriction or preference” of a group of persons who are identified by a prohibited ground of discrimination (“adverse effect discrimination” under s.11).
Was the Applicant’s Disability a Factor in the Respondent’s Decision Not to Offer Her the Position in Question?
23In order to establish a claim of direct discrimination, the applicant would have to show that she was denied the job in question because of her deafness. The applicant’s own evidence was that although she had trouble applying through the website, she sent a résumé without a covering letter to Ruth Armstrong approximately two weeks in advance of going to the farm in person. She further acknowledged that the résumé was silent on the issue of her hearing ability.
24Having heard the evidence, I am satisfied that Ruth Armstrong made the decision to forgo further consideration of the applicant’s résumé without having any knowledge of her deafness and based solely on the contents of her résumé, which is silent on the issue. The evidence provided by Ruth Armstrong was that she reviewed the applications and résumés as they came through the various electronic media to her and followed up only with those candidates who had the skills, qualifications and experience in which she was interested.
25I accept Mrs. Armstrong’s assertion that had she found anything of interest in the applicant’s résumé when she received it, either through the employment website or by email, she would have initiated further contact and followed up with the applicant. I further accept that the reason she did not do so was based solely on her assessment of the contents of the applicant’s résumé. The evidence presented at the hearing indicates that there is a great diversity and variety in the types of jobs relating to horses and that the applicant has not worked in the particular setting that the respondent farm represents. The applicant admitted as much in her Application documents and in her testimony. She stated, for example, that her current employment was “not taking me anywhere …with mucking out stalls and no riding/training whatsoever involved”. The applicant said that she wanted to find a job where she could “develop her skills as a horse trainer, instructor and an equestrian athlete” and felt the job at the respondent farm would be a great learning and growth opportunity.
26The applicant also admitted in her testimony that the first time she identified herself as a person with a hearing impairment was in her second email to the respondent, which was almost three weeks after she sent her résumé without a cover letter by email to the respondent. As I have indicated above, I have found that the decision not to proceed with the applicant’s résumé had already been made by that time. As a result, I find that the applicant’s claim of direct discrimination must fail and the applicant has failed to establish on a balance of probabilities that her disability was a factor in Ruth Armstrong’s decision to not offer her the job in question.
Was the Subsequent Email to the Applicant Discriminatory?
27Communications that take place between parties after a hiring decision has already made can also be characterized as properly falling with the reach of the Code as they are “with respect to employment”. The applicant’s subsequent contact with the respondent farm, effected both by travelling without invitation to the farm to drop off another résumé and her subsequent email to Ruth Armstrong with a covering letter following up a week later, resulted in the email contact from Ruth Armstrong. The cover letter with the email contained the first mention of the applicant’s hearing impairment.
28The email response identified the safety risk, as perceived by Ruth Armstrong, stating that “I feel a hearing impediment unfortunately might be a safety risk working with stallions”. Ruth Armstrong’s statement in the email has been characterized as “disturbing” and “disappointing” by the applicant. It is also this brief email exchange that she describes as making her feel as though her life’s work had been rendered meaningless. She also says that the respondent farm has “oppressed” her by denying her the opportunity to work on the horse farm and further her career in the equestrian business.
29I accept that the statement in the email may well have caused the applicant significant distress as she describes. Indeed, Ruth Armstrong also said during testimony that, in hindsight, while she might have worded her response differently so as to not cause offence, she still believes there is a safety issue and, as a certified coach with Equine Canada, felt she had an obligation to raise the issue.
30The Tribunal dealt with a similar issue in Wedley v. Northview Co-operative Homes Inc., 2008 HRTO 13, a case in which the discriminatory act was not the decision to terminate the complainant’s employment but the manner in which the termination decision was communicated to the complainant.
31In the case at hand, as discussed above, I have found that the decision not to hire the applicant had no connection to her disability. However, in communicating with her afterwards, one of the owners of the respondent farm made a reference to the applicant’s disability and its impact, in her opinion, on her ability to work with stallions in a breeding job. Given that this email was the applicant’s only response from the respondent farm to her job application, this reference, I conclude, could have led the applicant to incorrectly believe that she was not offered the job because of her disability. It also led the applicant to have reason to believe that she could not be offered the job because of her disability.
32I can accept that the applicant may sincerely believe that, as someone who has worked around horses for most of her life, she was eminently qualified to work in the position and her deafness did not pose a risk or impediment to her ability to do the job.
33Although not specifically characterized in this way, I understand the respondent to be arguing that even if Mrs. Armstrong’s reference to the applicant’s disability in the email requiring the ability to communicate orally during the sperm collection process, had the effect of excluding or restricting a group of persons who can be identified by a prohibited ground, such as the applicant, it can be justified because it is a bona fide occupational requirement.
34The justification or defence offered by the respondent farm owners for why the email referenced the applicant’s disability is that the applicant could not be accommodated without undue hardship in these circumstances because the mechanics of the process of “collecting” or extracting sperm from stallions is such that often partners are working in a stall alongside a stallion in heat, often with their backs to each other, and oral communication is all that is possible. Mrs. Armstrong’s description of the procedure is such that all of the other means of communication and accommodation of the applicant, such as lip reading, signals, flags, non-verbal cues or the use of an interpreter, would not be possible in that type of a time sensitive process in that setting. As well, the uncontested evidence of the respondent is that the failure to collect or extract the sperm as quickly as possible raises significant safety risks for those involved in the process.
35Having heard no evidence to counter this description of the job, I find that even if the communication mentioning the applicant’s disability that took place after the decision to not proceed with the applicant’s application for employment was considered discriminatory, the respondent farm has persuaded me that crucial aspects of the job of “collecting” sperm require oral communication and the respondent would have faced undue hardship in providing accommodation to the applicant.
36The other aspects of the job such as show jumping and barn work are secondary and I need not address those given my finding with respect to the sperm collection tasks. In addition, it is not necessary for me to address the respondent’s alternative argument about sharing the home occupied by the farm owners with a working student employee.
37In the result, the Application is dismissed.
Dated at Toronto this 20^th^ day of December, 2011.
“Signed by”
Jay Sengupta
Vice-chair```