Tuesday, 15 November 2016

Refusal to Hire Foreigners in Order to Keep the “White Man Working” both Morally Repugnant and Illegally Racist

(c) istock/numismarty

Is it “illegal” to refuse to hire an immigrant simply because he is a “foreigner”? Of course it is. That question should be an absurd way to start a post on a blog about Ontario employment law. And yet, here I am.

Since the election of Donald Trump as the president-elect of the United States, there has at least been a perception of an increase, if not an actual increase, in the number of hateful acts being perpetuated on both sides of the border. Many point to Trump’s election as a form of license to engage in such shameful, ignorant behaviour.

Typically, racism in the employment world has been more subtle. Systemic preferences have yielded predictable but less overt results.

Sometimes, however, racist motivations are patent and obvious. The case of Bouraoui v. Ottawa Valley Cleaning and Restoration, 2014 HRTO 1303 (CanLII) is the quintessential archetype of overt, unabashed racism in employment. I highlight this case at this time for three reasons:

  1. I feel it important that Canadians stop lauding themselves as somehow above racist tendencies and address the systemic barriers in our own employment practices;
  2. I feel it important to remind Canadians that the election of Donald Trump did not suddenly create racism; and
  3. I feel it important to remind those who believe that they may now be permitted to engage in such ignorant behaviour that Ontario’s laws will not condone such actions. Period.

Facts

The case concerned an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), alleging discrimination with respect to employment because of race, colour and place of origin.

The respondent filed no Response. It did otherwise participated in the case.

The applicant testified that he was seeking employment and that he attended at a number of businesses and left his resume.

The applicant testified that on June 4, 2013, he received a telephone call from someone named “Jesse” who identified that he worked for the respondent. The entire telephone conversation took place in English. The applicant indicated that the telephone call was very short, less than 90 seconds. The applicant testified that Jesse asked him whether he was still looking for employment. After the applicant indicated that he was still seeking employment, Jesse asked him about his work experience. After the applicant answered, Jesse asked him from which country he was from. The applicant answered that he was not from here. Jesse then asked the applicant if he was white or black. The applicant testified that he was shocked by this question and could not answer. Jesse then proceeded to state that he would send his decision regarding the employment of the applicant by text message.

Shortly after this conversation the applicant received a text message from Jesse which resulted in a number of text messages being exchanged the same day. The applicant produced a printout version of the series of texts which are reproduced in their entirety in the language used by the parties, as follows:

11:44 Jesse: Try learning English you will have better luck I don’t hire foreners I keep the white man working

12:02 Applicant: You said you keep the white man woking is abuse iwill file a complaint against you about your message . Ihave proof

12:16 Jesse: Go ahead have fun with that you told me fy that’s what you get and I didn’t say anything that can get me in trouble you are a former and I said that I keep the white man,working so you go and waste your time and see how far this gets you they are going to laugh at you I can say what ever I want this is a very good example of why I don’t hire foreners you waste peoples time with your bull shit so please go waste your day let me know how it goes for you

12:21 Applicant: Je plaisant pas avec toi la repnse tu vas le voir pas lentendre

12:24 Applicant : What you said is discrimination

12:43 Applicant: I confirm for you is descromination is not me who said that you will se next step

12:59: Jesse: It’s not one bit go ahead stop testing me you are a waste of time get a life it’s not my fault you can’t get a job

13:02 Applicant: I have 2job I dont need your job

13:03: Applicant: Just why you said word racist for me

13:03: Applicant: Ok the law exist

13:09: Jesse: I didn’t say anything that is racist all I sad was I don’t hire foreners and I hire white men so stop texting me take it how ever you want if you text me again it will be hearasment and there is no law for what I said it’s called freedom of speech in Canada maybe you would know that if you were a Canadian good by stop wasting my time I run a business I don’t have for you get a life

13:12: Applicant: Law exist

13:21: Jesse: Ya and now you are harassing me so I’ll file a company to don’t text me again and you are a forener and I only hire white men how the fuck is that racist you clearly have no life stop wasting mine you clearly have no friends and if you are looking for a friend sorry I don’t want to be your friend

13:23: Jesse: And stop texting me and go file a complaint he will probably be a white man and he will probably laugh at you and tell you to go away

In case anyone was keeping track, yes, Jesse spelled the word “foreigner” as “forener” four times in a rant about people who cannot speak the English language. This case almost rivals my other post (Deletion of Browser History in Failed Attempt to Protect Privacy Not Spoliation of Evidence) for the most ironic thing ever. I digress.

Decision

Well, the applicant did file a complaint and the adjudicator neither laughed at him nor told him to go away.

Indeed, rather than laughing the applicant out of the hearing room, Vice-Chair Geneviève Debané ordered the respondent company to pay $8,000 to the applicant as compensation for the infringement of the Code and injury to the applicant’s dignity, feelings and self-respect. The Tribunal further ordered the respondent to confirm to the applicant that all of its current owners and managers had completed the Human Rights 101 eLearning Module prepared by the Ontario Human Rights Commission which is available online at: http://www.ohrc.on.ca/hr101/.

In making such an order Vice-Chair Debané reasoned as follows:

[14] Having considered the uncontested evidence tendered by the applicant, I find that the applicant has established that he has been discriminated against by the respondent based on his race, colour and place of origin. Further, I find that this evidence establishes that the respondent has engaged in a number of breaches of the Code. The relevant provisions of the Code are:

5. 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, gender identity, gender expression, age, record of offences, marital status, family status or disability.

23. (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.

(3) Nothing in subsection (2) precludes the asking of questions at a personal employment interview concerning a prohibited ground of discrimination where discrimination on such ground is permitted under this Act.

[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.

As mentioned, the Tribunal awarded Mr. Bouraoui $8,000 in damages. It is important to note that $8,000 is all Mr. Bouraoui sought. I suspect that he may have been awarded more if he had asked for it.

Commentary

It is important to note that Bouraoui is not a new case and the actions that occurred happened long before Donald Trump even announced his presidency. To suggest that Trump’s election has somehow fostered racist actions would be naïve.

It would also be naïve of me to think that Trump’s election has not emboldened some people to believe that they can now openly engage in racist, sexist, misogynist, xenophobic, or any other “deplorable” actions. Those people are, to use Mr. Trump’s own words, “Wrong.” Trump’s election permits none of that. Not in the United States and certainly not in Canada. Wrong.

Will society ever rid of itself of chauvinistic tendencies? Unlikely. However, it is important to note that while we all have biases, acting on prohibited discriminatory biases will carry consequences. In some cases hate-fueled actions can carry criminal sanctions. In the employment realm, one’s failure to be mindful of Ontario’s human rights laws can result in economic sanctions.

Finally, to “Jesse’s” comment about freedom of speech, while it is true that in Canada one is generally legally permitted to freely express himself without government interference, in Canada even our constitutional rights have limits. There is also a difference between “free speech” and “consequence-free speech.” Bouraoui is an example of speech that was hardly free from consequences.

Takeaways for Employees with Labour Pains

The takeaway for employees is that if you believe that you have been denied a position, in part, because of who you are, you may have a case for discrimination. However, as my post, When the Most Qualified Candidate Does Not Win demonstrates, such cases are not as easy to win as one may think; seek experienced legal assistance.

If you are an individual looking for assistance with respect to your case, contacr the professional, experienced and cost-effective employment lawyers for employees at Ottawa's Kelly Santini LLP; we would be happy to be of service to you.

Takeaways for Employers with Labour Pains

The takeaway for employers should be simple: You cannot refuse to hire someone simply because of their inalienable qualities. The law prohibits discrimination on a number of enumerated grounds and employers need to appreciate what they can and cannot legally do.

If you are an employer and you would like assistance navigating the human rights world, contact the professional, experienced and cost-effective employment lawyers for employers at Ottawa's Kelly Santini LLP; we would be happy to be of service to your business or organization.

Contact Me

To reach the author of this blog, Sean Bawden, email sbawden@kellysantini.com or call 613.238.6321 x260.

Sean P. Bawden is a partner with Kelly Santini LLP, located in Ottawa, Ontario, Canada. He practices in the areas of employment law and civil litigation. He has also taught Trial Advocacy for Paralegals and Small Claims Court Practice at Algonquin College in Ottawa.

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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.

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