Saturday, 18 July 2015

Advertisement for “Caucasian” Nurse likely Discriminatory

While the CBC was running a feature segment as to whether racism remains an element of Canadian society, a Burlington, Ontario seniors home care company was posting an online advertisement for a “Caucasian RN or RPN.” In an online advertisement posted to Craigslist, shown below, Retire at Home services advertised that a client was "looking for a Caucasian RN or RPN to work shifts that are between eight and 12 hours in length."

The advertisement and subsequent stories touch off a debate as to whether the company had done anything legally wrong and if so what consequences it may face as a result.

The Law

Section 5 of Ontario’s Human Rights Code generally prohibits discrimination in employment on the grounds of, amongst other things, race, ancestry, place of origin, colour, ethnic origin, citizenship, and creed.

Section 23 of that law extends the right to be free from discrimination in employment to the pre-employment recruitment of employees in two ways:

(1) The right under section 5 to equal treatment with respect to employment is infringed where an invitation to apply for employment or an advertisement in connection with employment is published or displayed that directly or indirectly classifies or indicates qualifications by a prohibited ground of discrimination.

(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.

The law does make exceptions to the obligation to refrain from acting in a discriminatory way, one of which is in cases where “the primary duty of the employment is attending to the medical or personal needs of the person or of an ill child or an aged, infirm or ill spouse or other relative of the person.” (Human Rights Code, s 24(1)(c).) However, that exemption would only apply to an individual seeking personal care, not to a company such as Retire at Home.

Now What?

Let us presume for the sake of argument that the company has broken the law, so what? The Human Rights Code in general and section 23 in particular is not policed in the same way that some other laws, such as the Criminal Code of Canada or the Highway Traffic Act are, i.e. law enforcement agencies investigate and then issue tickets or other financial penalties. In order for the company to be punished someone will have to commence an application to the Human Rights Tribunal alleging that he or she saw the advertisement and because of it felt that his or her rights in employment were violated.

There are very few reports cases concerning pre-employment discrimination. However, in the case of Bouraoui v. Ottawa Valley Cleaning and Restoration, 2014 HRTO 1303 (CanLII) the Human Rights Tribunal of Ontario awarded $8,000.00 in damages for injury to the applicant’s dignity, feelings and self-respect after he was advised during the pre-employment application process, “Try learning English you will have better luck I don’t hire foreners I keep the white man working.”

In finding that the applicant’s rights had been violated in that case, Vice-Chair Geneviève Debané commented as follows:

[15] The applicant applied to work for the respondent and therefore section 5 of the Code applies to the applicant’s interactions with the respondent. The respondent contacted the applicant in order to conduct a telephone interview to review his employment qualifications. I am satisfied that when the respondent asked the applicant “where he was from” and whether “he was white or black” that these oral inquiries were deliberately made so as to directly classify the applicant based on three prohibited grounds contained in the Code, his race, colour and place of origin. I find that the Code clearly prohibits the respondent from making these types of inquiries during the interview process and the respondent has therefore infringed the applicant’s rights pursuant to section 23(2) of the Code.

[16] I also find that the sole reason that the applicant was denied employment with the respondent is because of his race, colour and place of origin. This is clearly repeatedly expressed in the text messages to the applicant. The manner in which this information was communicated to the applicant was egregious. When the applicant took offence to the discriminatory comments the clear documentary evidence establishes that the respondent proceeded to repeatedly ridicule and humiliate the applicant.

Takeaway for Employers with Labour Pains

One hopes this is obvious, but the takeaway for employers with labour pains is that it is generally a prohibited practice in Ontario to seek to only hire whites, or men, or straight people, or Christians, etc. With a few exceptions, positions should be open to any qualified person; recall the uproar about the Quebec Charter of Values and one Toronto-area hospital's responding advertisement, below.

If you are an employer in Ontario and are considering hiring someone based partially on who they are, it would be prudent to speak with an experienced employment lawyer first. The professional, experienced and cost-effective employment lawyers for employers at Ottawa's Kelly Santini LLP would be happy to be of service to your business or organization.

Takeaway for Employees with Labour Pains

For employees the takeaway is this: generally speaking an employer cannot legally refuse to hire you just because you do not look like the person doing the hiring. Ontario’s laws prohibit such discrimination and if you are qualified to do the job, then such arbitrary factors such as what is on one’s head or one’s skin colour should not prevent employment.

If you are a worker in Ontario and are looking for advice on whether your rights may have been violated, the professional, experienced and cost-effective employment lawyers for employees at Ottawa's Kelly Santini LLP would be happy to be of service to you.

Contact Me

To reach the author of this blog, Sean Bawden, email sbawden@kellysantini.com or call 613.238.6321 x260. You may also use the contact box at the top of this page.

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As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.

Sean Bawden, publisher of Labour Pains, can be reached by email at sbawden@kellysantini.com or by phone at 613.238.6321.

Sean P. Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP. He is also a part-time professor at Algonquin College teaching Trial Advocacy for Paralegals and Small Claims Court Practice.



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