HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Charlene Bradley
Applicant
-and-
City of Greater Sudbury
Respondent
DECISION
Adjudicator: Brian Cook
Indexed as: Bradley v. Greater Sudbury (City)
APPEARANCES
Charlene Bradley, Applicant
Ed Bradley, Representative
City of Greater Sudbury, Respondent
Marc Huneault, Counsel
INTRODUCTION
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”), alleging discrimination in employment on the basis of sex and age.
2The Application arises out of the applicant’s experience as an unsuccessful job applicant for a city transit driver position with the City of Sudbury in the period from 2008 to 2010. The applicant alleges the hiring process was discriminatory and in particular raises allegations regarding how the City managed its hiring “pool”. The Application was heard in Sudbury on August 27 and 29, 2010. I heard evidence from the applicant and three witnesses for the respondent.
THE RECRUITMENT PROCESS
3Gabrielle Servais, a Co-ordinator of Human Resources for the City, gave evidence about the Recruitment Guide Book and the City’s human resources policies generally. The corporate respondent has developed a Recruitment Guide Book to assist its managers through hiring processes. It is a comprehensive document that is presently being updated following new collective agreements but it was in place in its current form in the relevant period. Roger Sauvé is the Director of Transit Services and Bruno Lafortune is the City’s Driving and Certification Co-ordinator. They testified about the application of the policies in this case and generally in the City’s Transit department.
4The Guide Book authorizes hiring managers to develop a “recruitment pool”. The Guide Book describes the purpose of a recruitment pool in the following terms at page 29:
Pool recruiting was established as a method to allow a level playing field, where all citizens get an equal opportunity to express interest in designated positions, while avoiding the administrative burden of repeatedly having to post for external candidates, and conduct short listing.
5The pool consists of job applicants who have gone through screening processes and are therefore “pre-qualified”. The pool can be accessed to fill vacancies that arise.
6Ms. Servais testified that the City’s policy is that a pool remains in place only for six months. If vacancies come up during the six months, the vacancy can be filled from the pool but after six months, a new recruitment process must occur and a new pool created.
7Most positions, however, are filled through internal posting processes. Under the relevant collective agreements, the City must post all unionized positions internally, meaning that existing employees can apply for the position. Recruitment for new hires or from a recruitment pool only occurs if the positions are not filled internally.
8There are four categories of City transit drivers. The first category consists of drivers who are full-time regular drivers. The second category consists of “casual” or part-time drivers. These drivers are used to fill in as needed. They have steady work but irregular and part-time hours. The third category consists of contract drivers. These drivers are hired for a specific limited period. Finally, the City also hires students as seasonal part-time drivers.
9Drivers in the first three categories are all in unionized positions and so they are “internal” candidates for the purpose of job postings. Typically, full-time driver positions are filled internally by drivers who are casual drivers. Contract drivers often apply for casual driver positions as internal candidates. However, there are usually casual driver positions that are not vacant and not filled by internal candidates.
10The Ministry of Transport issues a variety of classes of driving licenses. Most members of the general public have a class G license. License classes from D to A are issued to cover different types of driving, including driving heavy equipment, transport trucks, school buses and municipal buses. Operation of a City bus requires a class B license. Because buses have airbrakes, the operator must also have a Z license designation. The operation of a City bus thus requires the operator to possess a BZ driving license. While none of this is disputed, there is a dispute, as discussed further below, as to whether it is necessary to possess a BZ license in order to apply for a bus driver position. The applicant argues that the job description for the transit operator position states that possession of a BZ license is a necessary qualification. The respondent submits that it is not necessary to already have a BZ license, but it is necessary to be eligible for a BZ license. This means, for example, that the person has not been charged with driving offences. Mr. Lafortune is qualified by the Ministry of Transport to issue a BZ license and to provide the necessary training.
11The recruitment process for transit operator positions in 2008 - 2010 started with an internal posting and a job advertisement, placed in the newspaper and on-line. The applications of the external applicants were reviewed to screen out applicants who were obviously not qualified. The remaining applicants were then telephoned by Mr. Lafortune. He asked a set of questions which were mostly designed to ensure that the person was eligible for a BZ license.
12The second stage was a written test, consisting of five parts. The first part asks seven questions consisting of questions typically encountered in job interviews, such as questions about expectations about the job, past experiences and examples of situations the applicant has encountered in previous jobs. The remaining parts of the test are multiple choice questions.
13The third stage was a road test where the job applicant drove a bus while monitored by Mr. Lafortune and Mr. Michel. They each completed a form rating the job applicant’s driving during the test.
14The final stage was an in-person interview with Mr. Lafortune and Mr. Michel. They each completed a separate form, rating the applicant on the answers to set questions.
15This Application concerns three recruitment processes, which occurred in 2008, 2009 and 2010.
The 2008 recruitment process
16In about April 2008, the City started a recruitment to fill vacant transit driver positions. Although the Transit department had authority to use the pool recruitment process earlier, this was the first time the process was used.
17An advertisement was run in the local newspaper and also posted on line. It was also posted internally.
18The applicant submitted a job application. She was interviewed by Mr. Lafortune by telephone and was invited to complete the written test and questionnaire. She also did a road test with Mr. Lafortune and Mr. Michel.
19The applicant testified that she was told that her score after all of this testing was 84.8%. She testified that she was told that the cut off for entry to the pool was 85%. The applicant was therefore not admitted to the pool. The respondent states that it does not retain records for more than two years so the test results for the 2008 recruitment process are not available.
20The applicant was naturally disappointed that she had so narrowly missed entrance to the pool.
The 2009 recruitment process
21In approximately April 2009, the City ran another pool recruitment process. According to the respondent’s evidence, the City received 138 applications in respect of this recruitment.
22The applicant submitted an application and after the written test, road test and interview, her score was 76.8%. This was lower than her score in 2008, which was 84.8%.
23The respondent offered employment to seven external candidates following the 2009 recruitment process. According to the respondent’s evidence the candidate with the highest score was a woman, and her score was 90.5%. Of the seven external candidates who were hired, four were women and three were men.
24A recruitment pool was created that included eight other candidates who were put in the pool but who were not offered employment. Of these, four were women and four were men.
25In this pool of eight, the applicant had the second highest score. The person in the pool of eight with the highest score was Stacey Rowlands, who testified at the hearing on behalf of the applicant.
26The applicant testified that she was told that since she had been accepted into the pool, she would not have to re-apply again in the future. The respondent’s witnesses indicated that the applicant would not have been told this.
27The applicant testified that she called Mr. Lafortune to confirm her status in the pool on several occasions in 2009. Mr. Lafotune agreed that the applicant had done so and that he had confirmed that she was ranked second in the pool in 2009.
The 2010 recruitment process
28In about April 2010, the City ran another recruitment process.
29Mr. Lafortune testified that he contacted the people who were in the pool from the 2009 process to invite them to apply.
30Mr. Lafortune called the applicant on April 6, 2010 and left a voice message for her. It asked her to call Mr. Lafortune if she was still interested in employment as a transit driver. It did not specifically advise her that it was necessary to reapply. Acting on her understanding that because she had been in the 2009 pool it was not necessary to reapply, the applicant did not submit another application. She did however call Mr. Lafortune and left a voice message confirming that she was still interested in employment. The applicant testified that in the message she asked Mr. Lafortune to call her back but he did not. She testified that she called him again several times, asking him to contact her but he did not return her calls.
31Stacey Rowlands testified that she also got a call from Mr. Lafortune. She was told that it was necessary to reapply and she submitted an application. Ms. Rowlands had the highest score of the people remaining from the 2009 pool. She testified that her understanding was that as a result she was certain that she would be offered a job. She was so certain of this that she gave notice to her then employer.
32As the applicant was the person with the next highest score after Ms. Rowlands, she too assumed that she would be offered a job.
33In May 2010 the applicant discovered that a new application was required for the 2010 recruitment pool. She was very upset to discover this as she was worried that because she had not submitted an application she would be disqualified and would not be offered a position.
34The applicant testified that she called Mr. Lafortune on numerous occasions, but never heard back from him. She started to call other officials to try to find out why Mr. Lafortune did not call her back.
35The applicant was eventually entered into the 2010 recruitment process even though she had not submitted an application. Mr. Lafortune testified that he realized that his voice message to the applicant on April 6, 2010 might not have been clear and he therefore decided it would not be fair to exclude the applicant.
36While Ms. Rowlands and the applicant were part of the 2010 pool, they did not participate in the testing process. They entered the pool with their scores from the 2009 process. The other new applicants did go through the testing process. Several of them had scores that were higher than the scores for the applicant and Ms. Rowlands.
37Nine positions were filled at the end of the 2010 recruitment process. Five were filled by internal candidates. Seven others were offered positions but three declined. The remaining four were filled by external candidates who had scores of 83.7%, 80.8%, 80.6% and 80.2%. According to the respondent, one of these four is female.
38Twelve other candidates were admitted to the 2010 pool but were not offered employment. The applicant’s score which was carried over from the 2009 process was 76.8%. This placed her sixth on the list of the twelve candidates.
39Before the applicant learned of the results of the recruitment process, she learned through an acquaintance that one of the other applicants in the 2010 recruitment process had been offered a position with a start date at the end of May. This person is a male who is younger than the applicant. As discussed below, she believes that he was less qualified than she was and in fact did not possess all of the necessary job qualifications.
40On the Friday before the May long weekend, Mr. Lafortune called the applicant and informed her that she was down on the list of qualified candidates and would not be offered employment at that time. The applicant was very upset to discover this and determined that she was not ever going to be offered a position. She also concluded that the process was discriminatory.
41After the long weekend, the applicant began to contact the offices of various people, including the Mayor and her local councillor to complain about the process.
42Gord Jenkinson is a pastor at the church that the applicant and her husband attend. He was present as a witness and testified that he spent time with the applicant over the long weekend. He confirmed that the applicant was very upset. Mr. Jenkinson testified that he agreed with the applicant that the process was unfair and discriminatory and subsequently tried to intervene on the applicant’s behalf. He attended meetings with the Mayor and the local councillor and others.
43Mr. Jenkinson indicated that he recognized that various officials who had a say in hiring might not have a favourable view of the applicant because of her reaction to the unfair process, based on her numerous phone calls to Mr. Lafortune and others and because she was so clearly upset. He wanted people to understand that the applicant would nevertheless be a very good employee and transit driver.
44Jamie Fitchett, also a witness on behalf of the applicant, also intervened on the applicant’s behalf. Mr. Fitchett is the owner-operator of a driver training centre with many years of experience as a driver and driver trainer. He is qualified to certify drivers for all levels of drivers licensing. He trained and certified the applicant for her B class licence.
45Mr. Fitchett testified that he attended a meeting with the local councillor and other officials who attempted to explain the recruitment process. Mr. Fitchett indicated that what stuck in his mind after this meeting was that it appeared that, apart from formal qualifications, the respondent was looking for a “certain type of person.” He testified that the applicant was discussed at the meeting. He indicated that he could see that they might have a negative opinion about the applicant because of her reaction to being wronged. He wanted the officials to know that in his opinion the applicant would be an excellent and highly professional transit operator.
46None of these interventions changed the situation. The applicant filed this Application and also contacted local media.
47The respondent ran a second recruitment process in 2010 but all positions were filled by internal applicants. Another recruitment process was run in 2011. The applicant did not apply. Ms. Rowlands did apply. She testified that she did not get any acknowledgement of her application and she thinks that this was because of her involvement in the applicant’s case.
The applicant’s allegations about the decision to run the 2010 recruitment
48The applicant alleges that the recruitment process, particularly in 2010, was contaminated by discrimination on the basis of sex and age.
49The applicant believes that the reason the respondent ran the 2010 recruitment was to avoid hiring women. She and Ms. Rowlands were then numbers one and two in the 2009 pool of qualified candidates who were not offered employment in 2010. If the respondent had drawn from the 2009 pool instead of running another pool, she and Ms. Rowlands would both have been offered positions and both were under the impression that this was in fact going to happen.
50On this point, the respondent maintains that it was obliged to run another recruitment process in 2010. Gabrielle Servais, the respondent’s co-ordinator of Human Resources, testified that a recruitment pool is supposed to exist for only six months. If new positions come open more than six months after a pool has been created, a new recruitment process should be run and a new pool created.
51Ms. Servais agreed that this rule does not seem to be explicitly spelled out in the Recruitment Guide Book, apart from a reference at page 30 of the Guide Book to “a time period, (typically six (6) months) covered by a ‘Pool Recruitment’ process.”
52Ms. Servais testified that the policy objective for the City is to ensure that the city can always draw on the most qualified job applicants for any position and this is why a new pool must be established every six months.
53The applicant submits that the respondent’s policies indicate that the time period for a pool should be twelve months, not six months. The applicant notes that the 2010 recruitment process was started less than one year after the 2009 recruitment process.
54There is a reference to twelve months in the Recruitment Guide Book. At page 30, the Guide Book indicates that a “blanket posting” may be issued to start a pool recruitment process. It indicates that if the pool is depleted as it is drawn from to fill vacancies that come open, a second “blanket posting” may be placed. The Guide Book states: “Applications on file which are over twelve (12) months old will be purged by the Hiring Manager.”
55I note that it is not clear that this reference necessarily applies to recruitment pools for transit drivers. The reference occurs in a section discussing “Part-Time Pool Recruitments” which lists a variety of part-time and casual positions, many of which are seasonal in nature. The list does not mention transit drivers. As well, this reference does not necessarily contradict the assertion that a new pool should be run if more than six months have elapsed, although there is some confusion regarding how the twelve months rule for “purging” applications fits with the six month rule about the recruitment process.
56Regardless of these factors, it is noteworthy that in the result there was no practical purpose to the recruitment pool process on any of the occasions when it was used to recruit transit drivers.
57The stated purpose of the pool process is to create a pool of “pre-qualified” applicants for certain jobs, in this case, transit operator. Following the initial round of hiring, the Department Manager can go to the pool to fill vacancies that come up after the initial round of hiring. That did not happen here.
58Mr. Lafortune explained that in the case of transit operators, newly hired operators have to go through an intensive three-day training program. He does not want to run this program for one or two individuals, so he waits until there is a larger group. By the time there were sufficient vacancies to result in a large enough training group, and on the assumption that a pool expires after six months, another recruitment process was run and so the department never drew from any of the pools established after the initial round of hiring.
The applicant’s allegations about qualifications
59The applicant alleges that a necessary qualification for the position of transit driver is possession of a BZ license. She had this qualification whereas others who were offered employment did not.
60The applicant’s allegation is founded in the Employment Opportunity Notice or job advertisement that the City posted at the start of the 2010 recruitment process. Under the heading Qualifications, the Notice states in part:
Must be physically capable of operating a vehicle safely, possess a Class ‘BZ’ Ontario Drivers License, have an acceptable driving record, and personal insurance coverage.
61The applicant notes that on its face, the Notice thus states that a necessary qualification for the position is possession of a BZ license.
62The respondent asserts that what the Notice means is that the person must be able to be granted a BZ license after appropriate training has been provided. A number of conditions must be met before an individual can be granted a BZ license. These include possession of a class G license for at least two years, no license suspensions, no charges for excessive speeding, careless driving or other driving related charges, etc.. The telephone interview process that the respondent conducts at the beginning of the recruitment process is in part designed to ensure that applicant’s meet these conditions. Applicants who meet these conditions can then receive the necessary training and Mr. Lafortune is licensed to issue the BZ license after training.
63The respondent submits that any confusion about the BZ license qualification results from the fact that the language used in the Employment Opportunity Notice is taken from the actual job description for transit driver. To actually start work and to continue to be eligible for work, the transit driver must have a BZ license. However, to be hired for the job, the individual must only be capable of obtaining the license but does not have to have it prior to hiring.
64In support of its position, the respondent notes that the Employment Opportunity Notice also provides that the operator “must have thorough knowledge of transit routes, fares and schedules.” The respondent submits that someone applying for a transit operator position could not be expected to have this knowledge. However, once hired and performing the job, the transit operator would be expected to have this knowledge.
65The applicant notes that the Employment Opportunity Notice states that individuals are required to have “successfully completed Secondary School (Grade XII).” In advance of her initial application in 2009, she obtained her grade 12 diploma. The applicant alleges that the respondent does not seek verification from applicants that they have their grade 12 diploma. The respondent did not dispute this.
66The applicant also alleges that the respondent never does reference checks on successful transit operator applicants. The respondent did not dispute this either. The applicant notes that the Recruitment Guide Book requires Managers to “conduct Reference Checks before hiring any Employee.” It goes on to state that reference checking is only optional for the hiring of a summer student.
67The applicant agrees that these problems are not directly discriminatory. However, she alleges that they permit the respondent to make discriminatory hiring decisions.
The applicant’s allegations about age discrimination
68The applicant alleges that some of the successful applicants were younger than she is. Some, however, were older. She was born in 1966.
69The applicant conceded that there is little or no evidence of direct age-related discrimination. It appears that there is no discernable difference between the various groups of successful and unsuccessful candidates based on age. Ms. Rowlands, for example is younger than the applicant.
70The applicant does raise a concern about the process used in the recruitment process that potentially relates to age.
71The applicants for the transit operator position were required to provide their driver’s licence during the interview process when a photocopy was taken and kept on file.
72When possession of a driver’s license is a requirement of a job, the Recruitment Guide Book advises managers not to ask to see a driver’s license until an offer of employment is made. The Guide Book notes that a driver’s license confirms the person’s age and so it should only be requested when the person is being offered the job to help ensure that age is not a factor that is improperly taken into account during the selection process.
73Mr. Sauvé testified that the case of transit operators is different. A copy of the driver’s license is necessary so that a driver’s abstract or driver’s record can be obtained from the Ministry of Transportation. The driver’s abstract is used to ensure that the person has the qualifications necessary before the person can be issued a BZ license. The driver’s abstract in turn states the driver’s age. Mr. Lafortune testified that in addition, it is necessary to confirm that the person has a valid driver’s license for the driving portion of the test.
ANALYSIS
74Section 5(1) of the Code provides as follows:
- (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.
75The applicant alleges that she experienced discrimination on the basis of sex and age when she was not offered employment as a transit operator. There are a number of factors that contributed to the applicant’s belief that she experienced this discrimination. These include:
The fact that she was told that her mark after the 2008 testing was only .2% less than the required mark for admittance to the pool;
Her understanding that, having been accepted into the pool in 2009, she would likely be offered employment from the pool, particularly when she learned she was number two in the pool;
Her understanding that, having been accepted into the pool in 2009, she would not have to re-apply in any later recruitment processes if she was not offered employment directly from the 2009 pool;
Her understanding that a younger male driver was hired immediately in the 2010 recruitment process and her understanding that this person had less relevant experience and lacked a qualification identified in the job advertisement as an essential qualification.
76As the applicant’s representative submitted, these factors, and particularly the last factor, could establish a prima facie case of discrimination. A prima facie case of discrimination is established if the applicant produces evidence to show that her allegations are true and show discrimination, in the absence of an explanation from the respondent.
77While an analysis of whether the applicant has established a prima facie case of discrimination can be helpful, in a case like this where I have heard the applicant’s evidence and the evidence of the respondents, the real question that I must determine is whether, considering all of the evidence, it is more probable than not that the respondent discriminated against the applicant on the grounds of sex or age.
78In regard to the applicant’s 2008 score, the respondent states that it no longer has the records and so cannot confirm that the applicant’s score was 84.8%. I note that the evidence shows that in many of the test results, there were only very small differences between the marks of the candidates. For example, in the 2010 process, there were three candidates with marks between 80.8% and 80.2%. The fact that the applicant did not make it into the 2008 pool by a small margin does not establish discrimination.
79The evidence about the recruitment process shows that there was definitely potential for confusion and misunderstanding about the process. First, as noted, the pool process was never actually used to hire anyone. In each case, the only people hired following a recruitment process were those who were offered employment immediately. No one was ever hired out of the pool after the initial offers of employment. However, the fact that there was a pool would naturally lead to some expectation on the part of those in the pool that they might be hired out of the pool. It appears that the respondent does use the pool process in the way it is intended when hiring other employees, particularly other seasonal and part-time employees. In those other areas, people are placed in a pool following a recruitment process and are hired out of the pool as vacancies subsequently came open.
80The reason why no one was ever hired out of the pool is that before a person who is otherwise qualified can actually start driving a bus, the person must undergo a three-day training program, run by Mr. Lafortune. Given this time commitment, it does not make sense to run the training program for only one or two people. Mr. Lafortune testified that it only makes sense to run the training program when there are at least five people available to take the test. Given the time commitment that is necessary to run the training program, Mr. Lafortune’s explanation is reasonable and credible.
81It appears that by the time there are at least five vacancies, more than six months have typically elapsed since the previous process that established the pool.
82This raises the issue of the “six month rule” regarding recruitment pools. The applicant suggests that this “rule” was implemented in this case only to avoid hiring out of the pool which would have led to the employment of her and Ms. Rowlands.
83According to Ms. Sauve, the “six month rule” is really more of an accepted practice. This seems consistent with the manner in which the “rule” is referenced in the Recruitment Guide Book (at page 30) noted earlier.
84Whether or not there is a six month rule or only a guideline or practice, I accept that the decision to run the 2010 recruitment pool process instead of drawing from the 2009 pool was consistent with the respondent’s usual approach.
85A related factor that contributed to the applicant’s belief that the process was unfair concerned the status of those who were in the 2009 pool at the time the 2010 recruitment process commenced. The applicant’s understanding was that, because she was in the pool, it was not necessary to re-apply. The respondent disputes that the applicant was told this. This led to some anxiety on the applicant’s part when she found out that she was supposed to apply after the application deadline had passed. On this point, I note that the respondent appears to have recognized that there was possibly some confusion and that it would be unfair to exclude the applicant because she had put in an application.
86Whether or not a new application was necessary, it appears that there was some differential treatment between new applicants and applicants who had been in the pool. New applicants had to go through the written and driving tests. Applicants from the pool did not and also did not have the option to redo the tests. The applicant suggests that this was unfair because her score might have improved if she had redone the test. The respondent notes that while the applicant’s score might have improved, it also might have gone down. The respondent notes that according to the applicant, her score was 84.8% after the testing in 2008 whereas it was 76.8% after the testing in 2009. I note that if the applicant’s score in 2008 was 84.8%, that same score would have placed her near the top of the 2010 list.
87While all of this reflects some lack of clarity about the process, it does not, in my view, establish evidence of discrimination on the basis of a Code-protected ground. In particular, I do not accept that the respondent manipulated the process to keep the applicant at her 2009 score to ensure that she was not hired in the 2010 process. This would have required some foreknowledge of the scores that would be assigned to those 2010 applicants who were tested. As well, it appears that the same process was followed for all the 2009 pool members, regardless of their sex or age.
88In regard to the issue of qualifications, there is again some confusion evident because of the plain meaning of the job description as advertised. On its face, the advertisement suggests that a necessary condition for employment is a valid BZ license. I note that the respondent has agreed that this could be misleading and has explored different wording to make clear that the necessary condition is that the person’s past driving record makes them eligible for BZ licensing.
89I accept that the confusion on this point arises from the fact that the respondent posted the job description as the description of the job as advertised. To actually do the job, a transit operator must possess a BZ license, in the same way that an operator must have a working knowledge of the City’s bus routes and fare schedules. To be considered for a transit operator position, the person’s past driving record makes them eligible for BZ licensing but they do not have to actually possess the BZ license before a job offer can be made. On this point, I note that the respondent’s evidence is that everyone who is offered a position must complete the three-day training program, whether or not the person has a BZ license. Mr. Lafortune can grant the BZ license to those who successfully complete the three-day program.
90Even if possession of a BZ license was actually a necessary condition before someone could be offered a job, there is no evidence that the applicant was treated differentially because of her sex or age. It seems that the same approach was taken with all applicants regardless of their sex or age. To take one example, Ms. Rowlands was accepted into the 2009 pool even though she did not have her BZ license.
91I therefore conclude that, while potentially confusing, the issue of whether possession of a BZ license was necessary for a job could be offered is not evidence of discrimination contrary to the Code.
92I similarly find that any failure to follow the Recruitment Guide Book by not confirming that applicants have completed grade 12 or checking references is not evidence of discrimination. The respondent confirmed that it did not make these confirmations and checks with any job applicant. There does not seem to be any reason to suppose that this resulted in differential treatment on the grounds of sex or age. In other words, there is no evidence that if this confirmation and checking had occurred that it would have resulted in more women or older people being offered employment.
93I turn now to the applicant’s allegation that the fact that the respondent took a photocopy of each job applicant’s driver’s license at the point of the initial interview instead of at the point of job offer resulted in age discrimination.
94Section 23(2) of the Code provides as follows:
- (2) The right under section 5 to equal treatment with respect to employment is infringed where a form of application for employment is used or a written or oral inquiry is made of an applicant that directly or indirectly classifies or indicates qualifications by a prohibited ground of discrimination.
95Section 45.2 sets out the Tribunal’s powers when it determines that an applicant’s Code-protected rights have been infringed:
45.2 (1) On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:
An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.
An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.
An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.
(2) For greater certainty, an order under paragraph 3 of subsection (1),
(a) may direct a person to do anything with respect to future practices; and
(b) may be made even if no order under that paragraph was requested.
96Shaw v. Ottawa (City), 2012 HRTO 593, was a case where an employer required job applicants to provide their birth certificate and driver’s license at the start of the process of applying for a position as a firefighter. A copy of these documents was retained by the employer during the application process. As in the present case, in Shaw, the applicant alleged that he was not offered a position because of discrimination on the basis of age. The applicant in Shaw also raised section 23 of the Code.
97In Shaw, the Tribunal found that the applicant had not established that the decision to not offer him a position was based on age. The Vice-chair noted, however, that the requirement to provide a driver’s license and birth certificate appeared to be contrary to section 23.
98At paragraph 24, the Vice-chair described the respondent’s explanation for the need to have a copy of the job applicant’s driver’s license and birth certificate:
The respondent’s division chief for training testified that the respondent required each candidate to provide a clerk with a copy of his or her driver’s license at the written examination stage purely for identification purposes. He stated that at the interview stage a candidate was then required to provide a clerk with a copy of his or her a birth certificate or passport to show that he or she was legally entitled to work in Canada, and to provide a copy of his or her Class “D” driver’s license with a “Z” air brake endorsement to show that he or she could drive a fire truck within 30-60 days of being hired.
99At paragraph 50, the Vice-chair commented:
[T]he respondent infringed s. 23(2) of the Code by making a written inquiry of the applicant that indirectly classified him by age. The request for a birth certificate or passport also would have classified candidates by other Code grounds, such as place of origin. In my view, the respondent can only request such documents after a conditional offer of employment is made, or if it requests such documents prior to a conditional offer being made, the dates of birth and any other Code ground identifiers must be blacked out before the documents are submitted.
100The Vice-chair found that the applicant was not entitled to any financial compensation as a result of the respondent’s “technical violation of the Code” because the evidence did not show that the information on the birth certificate or driver’s license played any role in the decision not to award the applicant the position of probationary firefighter and because there was no evidence that the respondent’s written request for his birth certificate and driver’s license prior to his interview resulted in an injury to the applicant’s dignity, feelings and self-respect.
101However, at paragraph 66, the Vice-chair concluded as follows:
In view of my finding that the respondent infringed s. 23(2) of the Code by making a written inquiry of the applicant and other candidates that indirectly classified them by age, I find that it is appropriate to order the respondent to cease and desist from requiring candidates for firefighter positions in job competitions to provide copies of documents with their birth dates and other Code ground identifiers on them during the application and interview process. I will leave it up to the respondent as to how it will implement this order.
102In the case before me, the applicant does not allege that the fact that the respondent took a photocopy of her driver’s license played any role in the events or contributed in any way to the fact that she was not offered a transit driver position. I have found that there is no evidence that the applicant’s age had anything to do with the events or the fact that the applicant was not offered a transit driver position.
103In Shaw, there was a concern not only about the request for the job applicant’s birth certificate or passport. These documents could potentially identify the person as belonging to a Code-protected group based, for example, on place of origin.
104In this case, there was a request only for the driver’s license which does identify the person’s age. It is not entirely clear to me that knowledge of a person’s age necessarily means that the person is “classified” by a prohibited ground of discrimination, resulting in discrimination under section 5 of the Code. However, for the reasons noted below, I find that it is not necessary to determine this in this case.
105The respondent in this case appears to have a bona fide reason for needing the photocopy at an early stage as it is necessary to confirm that the person’s past driving record makes them eligible for BZ licensing. To do this, the respondent must access the person’s driving abstract, which requires the driver’s license information. The driving abstract in turn includes the driver’s date of birth.
106The testing process that the respondent uses is relatively time intensive and it is reasonable that the respondent ensure that the person will be eligible for the license before going through the process. Even if the respondent blacked out the applicant’s age on the driver’s license photocopy, the driver’s license number itself includes the driver’s date of birth. Moreover, the applicant’s age would be revealed when the driver’s abstract was received.
107In these circumstances, and assuming that a technical violation of s. 23(2) occurred, I find that that an order under section 45.2 of the Code is not necessary or appropriate
DECISION
108In considering the totality of the evidence, I find that it is more probable than not that the respondent did not discriminate against the applicant on the grounds of sex or age contrary to the Code. The Application is dismissed.
Dated at Toronto, this 29th day of October, 2012.
"Signed by"
Brian Cook
Vice-chair
