This is an interesting one. My employment law students should be able to work through the legal argument. As I explain in Chapter 26 of The Law of Work, human rights cases involve a two-step analysis, as depicted in the box below.
In this case, the woman’s claim is that she was on track to getting a police job, but then an employer rep asked her age and the answer put an end to her dream of being a police officer. She is definitely alleging discrimination on the basis of prohibited ground (age) in Section 5 of the Ontario Human Rights Code. She will need to persuade the Tribunal that the employer was influenced to deny her a job based on her age. In that regard, the evidence that the employer asked her age will be important.
Can an employer ask a job applicant’s age?
That inquiry (how old are you?) brings into a play a special part of the Code that deals with job interview questions. Read section 24(2) and (3):
(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.
Section 24(2) prohibits an employer from making inquiries in a job interview that illicit
information about prohibited grounds. An employer can’t ask an applicant about their religion, race, sexual orientation, marital status, place of origin, or about any other prohibited ground, including their age. The legal assumption is that the answers to these questions are irrelevant, of a personal nature, and frankly none of the employer’s business.
So when an employer asked an applicant “where are you from” and “are you white”, the Tribunal ruled there had been a violation of section 23(2). And when an employer asked an applicant if she had ever received psychiatric care, it violated Section 23, since the question classifies applicants as disabled or not disabled. Similarly, asking an applicant their age classifies the applicants by age and indicates that age is a relevant job criteria (see e.g. Johnson v. Ontario)
If the employer did ask “how old are you?”, then it may have violated Section 24(2). Two points are worth noting in that regard. Firstly, the fact that an employer asked an illegal question does not necessarily mean that the employer unlawfully denied employment in violation of the Code. The hiring decision is treated as a distinct matter from the unlawful question. In other words, an employer can ask an illegal question but then not be influenced by the answer. The employer here could concede that its representative should not have asked the applicant her age but still argue that age was not a factor in the hiring decision. However, the fact that the question was asked is an important part of the evidentiary record and raises the suspicious that the employer believed age was a relevant factor.
Secondly, there is an exception in Section 24(3) that permits employers in some circumstances to ask about prohibited grounds. That section provides that it is not unlawful to ask about a prohibited ground if “discrimination on such ground is permitted” by the Code. What does that mean?
Is Age a Reasonable and Bona Fide Qualification of Being a Police Officer?
To answer this question we need to turn our attention to Question Two in our two step analysis. The Code includes a number of exemptions or defences for employers, situations in which actions that otherwise would constitute discrimination on a prohibited grounds are nevertheless permitted. One of them is found in Section 24(1)(b) and 24(2):
24. (1) The right under section 5 to equal treatment with respect to employment is not infringed where,
(b) the discrimination in employment is for reasons of age… if the age … of the applicant is a reasonable and bona fide qualification because of the nature of the employment; …
(2) No tribunal or court shall find that a qualification under clause (1) (b) is reasonable and bona fide unless it is satisfied that the circumstances of the person cannot be accommodated without undue hardship on the person responsible for accommodating those circumstances considering the cost, outside sources of funding, if any, and health and safety requirements, if any.
Now the plot thickens. The employer may argue that it was permitted to ask about age because Section 24 permits it to discriminate on the basis of age. Alternatively, it may argue that age was not a factor in the hiring decision, but in the alternative, even if it was, “age” is a reasonable and bona fide qualification of being a police officer. The employer would need to argue that, because of the nature of police work, it is reasonable and bona fide to refuse employment to applicants over 50.
Issues to Consider
Do you think that the employer can win that argument?
The analysis in the Supreme Court of Canada decision in Meiorin would be applied. The following questions might arise if the employer argued the Section 24(1)(b) defence:
* Was a rule requiring new police hirers to be younger than 50 adopted for a purpose or goal that was rationally connected to the performance of the job;
• Was this requirement adopted in an honest and good faith belief that it was necessary to the fulfilment of that purpose; and
• Is this requirement reasonably necessary to accomplish this purpose, which includes an assessment of whether individual employees over 50 could be accommodated without undue hardship.
There are lots of cases challenging mandatory retirement policies relating to firefighters and police, but those cases assess the risks and capabilities of employees 60 and older. See for example the analysis in Espey v. London (City), a case challenging a requirement for firefighters to retire at age 60. Does the reasoning in that case have application to a refusal by police to hire a 51 year old?
Can you develop a legal argument for the employer, assuming that in fact age was a consideration in their decision not to hire the woman in this story?
If she wins, what should be the remedy? Can the Tribunal order the employer to hire her at say 56 years old? Should the Tribunal order reinstatement?