Regan v. Hudson’s Bay Company, 2016 HRTO 43

Human Rights Tribunal of Ontario

B E T W E E N:

Sheila Regan

Applicant

-and-

Hudson’s Bay Company

Respondent

DECISION

Adjudicator: Naomi Overend

Date: January 11, 2016

Citation: 2016 HRTO 43

Indexed as: Regan v. Hudson’s Bay Company

APPEARANCES

Sheila Regan, Applicant

Self-represented

Hudson’s Bay Company, Respondent

Nicholas Saint-Martin, Counsel

Introduction

1In September 2013, the applicant, Sheila Regan, applied for a job as a seasonal worker at the respondent’s store at Queen and Bay. She had job-related experience and was hopeful that she would be hired for, and perhaps even retained beyond, the Christmas season. She attended an initial “group” interview. Despite her retail experience, the applicant alleges the person interviewing her treated her coldly, in contrast to how she treated the other interviewees. The applicant was not invited back for a second interview and not hired.

2In her Application, filed on September 4, 2014, the applicant alleges that she was not hired because of her race and colour contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Specifically, she asserts that she was “the only true white” interviewee, “along with a couple of men.” She identifies the person interviewing her as “black”.

3The respondent takes the position that the applicant has failed to make out a prima facie case of discrimination and, in any event, states that the applicant made a poor impression because she was on her cellphone immediately prior to the interview and answered it during her interview.

Evidence

4A hearing in respect of this Application was heard on January 5, 2016, at which time I heard testimony from the applicant and Judith Martin, the person who interviewed the applicant.

5The facts of this case are straight-forward and largely not in dispute. The applicant applied for seasonal work with the respondent. She was called into a group interview. The purpose of this interview was to screen candidates for positions in the “Merchandising Movement Team” and the “Sales Support Team.” These are described by the respondent as being “back of house” positions. Back of the house work involves receiving, unpacking and setting up merchandise. People working on these teams are not involved in selling the merchandise, which is described as “front of house” work.

6The group interview took place on September 11, 2013, at the respondent’s store on Queen and Bay. Normally such interviews would be conducted by the Manager of these two teams, Shirley Lu, but that fall Ms. Lu was required to take time off to attend to a sick relative and Ms. Martin was assisting her with this task. Ms. Martin testified that she did not make the decision about who to hire following these group interviews, but would convey information about what had transpired to Ms. Lu, who would then decide who she wished to call in for a second interview. Regardless of whether she made the actual decision, it was clear that Ms. Martin’s impressions influenced who was screened out at this early stage.

7The applicant testified that there were approximately 10-14 people being interviewed with her. Her Application states there were 10 people being interviewed. Ms. Martin testified that she thought there were 3 or 4 people being interviewed. The applicant had a strong recollection of the ethnicity of many of the people being interviewed and I accept her position that there were more than 3 or 4 interviewees in total.

8I would note at this juncture that Ms. Martin was made aware of the applicant’s allegation that she had been discriminated against in the interview process because the applicant had made a complaint to the Director of Human Resources, Linda Forbes, sometime in the fall of 2013. At the time of the initial complaint to Ms. Forbes, Ms. Martin could recall the applicant and the manner in which she conducted herself in the interview. However, Ms. Martin was not aware of the full particulars of the applicant’s allegations until after the Respondent was served with the applicant’s Application in January 2015. This was 16 months after their only encounter and it is not surprising that Ms. Martin does not have a clear recollection of the details of the particular interview conducted that day.

9Ms. Martin testified that when she went to bring the interviewees into the boardroom, where the interview was to take place, the applicant was speaking to someone on her cellphone. Shortly after the interview started, the applicant’s cellphone rang and the applicant answered her phone. The applicant agrees that this took place. Both witnesses are in agreement that the applicant told the person that she could not talk and then apologized to the group for the disruption. The applicant testified that she advised everyone that this was a new phone and that she thought that she had turned it off.

10Ms. Martin testified that the fact that the applicant was speaking on the phone while waiting to be called into the interview, and then answered the phone while in the interview, left her with a negative impression of the applicant (specifically that she was not “ready”), which she conveyed to Ms. Lu. However, she said she conducted the interview in a normal fashion thereafter and did not treat the applicant any differently than the other interviewees.

11In contrast, the applicant testified that Ms. Martin treated her in a cold manner, distinct from the way she treated the other interviewees, in particular a woman who the applicant described alternatingly as Chinese or “Oriental.” The applicant testified that she believed her race or colour were a factor in how Ms. Martin treated her, although she also testified that she was not sure why Ms. Martin did not like her and speculated that perhaps it was because the applicant reminded Ms. Martin of someone who she did not like.

12The applicant testified that she was the only “white” woman in the interview. She said that there were two white males. When the applicant uses the term “white,” she is referring to someone such as herself; that is, Canadian-born as well as light-skinned. She also testified that there were two young persons from Paris, France, being interviewed, who she acknowledged were not visible minorities. Moreover, she testified that in the interview, there was someone who was “Italian.” Indeed, the only interviewee that the applicant specifically identified in her testimony as being from a different racial background (as opposed to a different ethnicity) was the “Chinese/Oriental” woman.

13Both parties agree that Ms. Martin described the work of the positions being interviewed for and then asked the interviewees to describe their work experience. The applicant testified that she talked about her experience working in a Coles Book store for eight years, which was directly related to the positions for which she was being interviewed. It was her impression that she was either the most qualified in the group or one of the most qualified in the group.

14I would note that the applicant did not testify about the qualifications of the other interviewees, other than the one “Chinese” candidate. The applicant testified that this individual admitted that she did not have any of the necessary qualifications, to which Ms. Martin responded sympathetically “aww.”

15On the way out of the room, the applicant said that Ms. Martin shook everyone’s hand and wished them luck. She testified that she observed Ms. Martin warmly doing this, but when it got to her (the applicant testified she was at the end of the line), both the hand-shake and the parting words were coldly conveyed and Ms. Martin did not look her in the eye.

16The applicant did not get called in for a second interview and was not hired. At some point, the applicant phone Ms. Forbes to ask why. The applicant testified that Ms. Forbes suggested to her that perhaps the reason for this was the applicant’s use of her cellphone, after the applicant told her that her cellphone had gone off during the interview, but the applicant viewed this as merely an excuse.

17During the Christmas season, the applicant testified that she went to the store and observed that there were a lot of visible minority employees on the first floor. She also testified that she used the washroom that day, where she “was almost certain” that she saw the Chinese woman from her interview group with a name tag on, suggesting she had been hired. The applicant acknowledged in her testimony that she did not approach this woman and verify that it was the same person, nor did she make inquiries about whether this woman was working in sales (i.e., front of house) or in a back of house position.

Decision and Analysis

18Put in the simplest terms, the applicant’s case is as follows:

• During the group interview she attended, she observed the other, non-“white” interviewees being treated warmly, while she was treated coldly by the person conducting the interview (who was “black”);

• She was not hired for a job for which she was qualified, while an unqualified person, who was a different race/colour was hired; and

• Her subsequent observation during the Christmas season of the employees working for the respondent was that they were disproportionately non-white, suggesting a bias on the part of the respondent.

19There are many logical and evidentiary problems with the applicant’s position. Firstly, even on the applicant’s definition of “white” (i.e., restricted to those who are Canadian-born), there were two other candidates being interviewed at the same time as the applicant who fell into this category, neither of which she observed being treated in the same manner as her. The applicant has not suggested that gender played a role in the respondent’s “cold” treatment of her. Indeed, the only person of a different “race” than the applicant was the “Chinese” woman, whom the applicant specifically testified was treated in a “warm” fashion.

20The applicant states that she was not hired, even though qualified, and others with fewer or no qualifications were hired. However, the applicant has no information about whom, if anyone, was hired from her group and what their relative qualifications were. She did testify that she was almost certain she saw the “Chinese” woman from her group interview in the store a month later, with a name tag on, indicating that she was an employee. The difficulty with this evidence is that the applicant did not approach this individual to confirm if (a) it really was the woman from her group; and (b) whether she had been hired to one of the “back of the house” positions (as opposed to a sales or “front of the house” position). I can infer nothing from this particular observation.

21The applicant’s assertion that most of the staff she observed on the first floor (i.e., the floor with the cosmetics and jewellery departments) were visible minorities is likewise unhelpful, composed as it was, of a single time frame and only a small segment of the respondent’s workforce at that store. The applicant has not brought evidence that these individuals were hired disproportionately in relation to who applied and/or who was qualified.

22Moreover, the applicant assumed that these were largely seasonal employees, although she had no evidence of that. She did not know which of these employees were “front of house” or “back of house” or, for that matter, who hired them. Ms. Martin testified that she was just filling in for Ms. Lu and conducting these interviews was not her usual work. She also testified that Ms. Lu made the final decision with respect to the back of the house employees. There are no allegations with respect to Ms. Lu.

23I agree with the respondent’s submission that the applicant’s attempt to connect the respondent’s alleged adverse treatment of her, to her race or colour (or even her ethnicity) is merely speculation. Indeed, during her testimony, the applicant candidly said several times that she did not know whether Ms. Martin was “prejudiced” or just did not like her.

24Given that I cannot draw an inference of discrimination from the applicant’s evidence, it is not necessary for the respondent to proffer a non-discriminatory explanation for its conduct. In any event, the respondent provided such an explanation, which further supports my view that the applicant was not discriminated against, when it called evidence that Ms. Martin’s view of the applicant was tainted by the applicant’s use of her cellphone. I accept Ms. Martin’s evidence she had never seen someone use their cellphone in the waiting area prior to an interview, or receive a call during an interview, and she regarded this as an indication that the applicant was “not ready for the interview.”

25The applicant disputes that the respondent ought to have held this against her – that it was a new phone, which she thought she had turned off, and so when it rang, it was an accident. It is not, however, my role to consider whether the respondent’s belief about the applicant’s cellphone use was fair or not. If a belief is sincerely held, and not merely pretext for discrimination, it is not within the Tribunal’s jurisdiction to determine whether it ought to have been a factor in the decision to not hire an individual.

26The applicant has the burden of proving discrimination on the balance of probabilities. I am mindful that an enumerated ground under the Code need only be a “factor” in the adverse treatment alleged. In this case, the applicant has not met this burden and her Application must fail.

Order

27The Application is dismissed.