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Sometimes the most-qualified candidate for a position is not successful in her application. Where that candidate is also a member of a historically disadvantaged group, suspicions will arise that the candidate’s membership in that group was at least a factor in the decision to award the position to someone else. This suspicion can arise – and be quite legitimate – even in cases where the incumbent is also a member of a different historically franchised group. For example, where a woman is applying for a job currently held by a person of colour.
In cases of private employment, applicants who believe that their membership in a historically disadvantaged group was a factor in the decision to award the position to someone else can make an application to the Human Rights Tribunal of Ontario alleging discrimination in employment.
The case of Hussain v. Ottawa Police Services Board, 2016 HRTO 1386 demonstrates the challenges sometimes inherent in advancing such an argument.
