Section 23 of the Ontario Human Rights Code is an interesting section. It regulates what an employer can (and can’t ) ask job applicants. I have had several disagreements with commentators on this blog over the years when I have explained my view of this section. While I’ve argued that the mere asking of an improper question is a violation of Section 5 (via section 23), others have argued that an improper question is alright, provided the employer did not intend to discriminate and does not rely on information obtained through an improper question in their hiring decisions.
A decision issued today by the Tribunal comes down on my side of the debate. See what you think. The case is called Yildiz and MAG Lighting.
The applicant (Y) was told to report to a job site for a tryout to fill a vacancy as an electrician. At another site, the employer was giving another applicant a tryout as well. The other applicant was offered the full-time job, and Y filed a complaint alleging that he did not get the job because of his ethnicity or place of origin, contrary to Section 5 of the Code. During the tryout period, a manager of the employer asked Y where he was from, meaning what part of Turkey. Both men were Turkish. Y said he was from a city in central Turkey, to which the manager responded with some suspicion because of either how Y looked or sounded. Y has chosen the city as his answer, because it is a place that has a mix of Kurdish and ethnic Turkish residents. Y argued that the manager believed he was from a Kurdish part of Turkey, which was why he was denied the job.
The Tribunal’s Decision
Y loses the argument that he was denied the job because of his ethnicity. The Tribunal ruled that he was not given the job because the other candidate was found to be more suitable for the position. The supervisor who made the decision was not the same manager who had asked Y where he lived, and the Tribunal accepts the explanation that the hiring decision was skills related, and not based on prohibited grounds.
However, the Tribunal does find that a breach of Section 23 occurred when Y was asked where he was from. The reasoning is instructive. Firstly, look at Section 23(2):
Application for Employment. 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 employer made three arguments in its defence. Firstly, it argued that section 23(2) does not apply, since the question was not ‘an oral inquiry made of an applicant’. The Tribunal dismissed the argument, and I don’t even understand it. Since the employee was in a job tryout when he was asked where he’s from, he must have been an ‘applicant’.
Secondly, the employer argued that ‘where are you from’ does not ‘directly or indirectly classify or indicate qualifications by a prohibited ground’. The Tribunal disagreed. The Adjudicator said, “I cannot think of a clearer question that would elicit the applicant’s place of origin than ‘where are you from’. By directly soliciting information with respect to the applicant’s place of origin, the respondent made an oral inquiry that had the effect of classifying the applicant on the basis of a prohibited ground.”
The Tribunal’s response to the employer’s third argument is the most interesting. The Employer argued that even if the question did classify the qualifications by a prohibited ground, it is still not a violation of Section 23 if the employer can provide a ‘non-discriminatory explanation’ for asking the question. The employer argued that the question was just by way of following Turkish social norms by asking what part of Turkey people are from, and that no improper purpose was intended, and no improper use of the information obtained was deployed. This is a common refrain by employers who ask applicant questions like, “Do you have any children?”, or “What does your husband do?”. An employer might say, we were just being friendly and engaging in normal social chit-chat; we had not improper motive and we didn’t rely on the answers in any way.
However, the Tribunal ruled that Section 23 is violated by the mere asking of an improper question, regardless of the motive or use of the information obtained. It rejected any Tribunal decisions that might suggest otherwise. Section 23, like all other Code sections, must be given a broad and purposive reading. On its face, Section 23(2) says the making of an improper inquiry “infringes” Section 5. Period. Moreover, as I have been arguing for some time, the Tribunal says that Section 23 must introduce something new that is not already prohibited by the general ban on employment discrimination in Section 5:
It is difficult to discern why the legislature would enact directory provisions under section 23 in relation to specific types of conduct, which would otherwise potentially be captured under the general provisions of section 5, unless it was intended that the conduct in section 23 be treated uniquely.
If an employer relies on information about an applicant’s place of origin, then that would be a violation of Section 5 even if Section 23 wasn’t there. That tells us, as the Tribunal correctly finds in this case, that Section 23 is intended to stop employers from asking improper questions in the first place, so that employees do not feel they are being improperly categorized, and also to reduce the temptation for employers to allow improper information obtained in the answers to taint their decisions, intentionally or subconsciously.
What’s the remedy for an improper question during the interview stage, when the information obtained is not used improperly in a hiring decision?
Here, the Tribunal finds it is appropriate to order monetary damages for harm to dignity, self-respect, and hurt feelings. In this case, the Tribunal assesses that amount at $1500, plus interest.
Questions for Discussion
Do you agree with the Tribunal’s approach to Section 23 in this case?
Or, do you think that the Tribunal should only find that a question violates Section 23 of the Code if the employer’s intention was to obtain information about prohibited grounds?