By Wendy Woloshyn.
Most Canadians are aware that their human rights are protected on the job. What you might not know is that this protection includes the pre-employment stage. If a company’s hiring process discriminates against certain applicants on the basis of a “protected ground” (e.g. race, age, sex, family status, gender identity, etc.), or someone is denied a job on one of these grounds, this violates provincial human rights legislation.
Haseeb v. Imperial Oil: The “Permanence Requirement”
A recent high-profile example of such pre-employment discrimination occurred in the 2019 Ontario Human Rights Tribunal case of Haseeb v. Imperial Oil. The issue there was Imperial Oil’s requirement that job candidates be eligible to “work in Canada on a permanent basis”.
Mr. Haseeb was Imperial Oil’s top ranked candidate when he applied for a position in 2014; however, when the company eventually learned that he was neither a Canadian citizen nor a permanent resident, they rescinded their job offer to him and he later brought a human rights claim against them.
In 2018, the Ontario Human Rights Tribunal concluded that Imperial Oil’s “permanence requirement” was indeed discrimination based on the protected group of “citizenship”. And even though Mr. Haseeb had initially lied during the hiring process that he was eligible to work in Canada permanently, the Tribunal concluded that this dishonesty was irrelevant to whether the company’s hiring policies were discriminatory. They looked at his dishonesty in the wider context, and concluded that his lies about his immigration status were “inextricably linked” to the pre-employment permanence requirement.
A Note about Mr. Haseeb’s Employment Eligibility
Throughout Imperial Oil’s selection process, Mr. Haseeb was a student at McGill University, completing his engineering degree. He was an international student and his visa allowed him to obtain a work permit for on-campus part-time work and for full time work during breaks between academic terms.
On graduation, with a letter from McGill confirming that he had completed the credits for his degree, he became eligible for a “postgraduate work permit” (PGWP) for a fixed term (3 years). The PGWP would permit him to work full time, anywhere and with any employer in Canada. Mr. Haseeb had obtained a SIN for internship periods during his degree with no difficulty and expected to have the same ease after he obtained his PGWP. He also anticipated that he would attain permanent residency status within three years (and in fact, he did obtain it in June 2017). Obtaining the PGWP was conditional only on proof that he had completed his degree and he indeed received his SIN for full time post-graduate work within minutes of applying for it in early 2015.
Mr. Haseeb’s Remedy
With the question of discrimination settled in 2018, the Tribunal’s next task was to determine what Mr. Haseeb’s financial losses were – what remedy was he entitled to from Imperial Oil as a result of the company’s human rights violations?
To answer that question, the Tribunal applied this general remedial principle:
Mr. Haseeb should be put in the position he would have been in had there been no violation of his human rights.
In Mr. Haseeb’s particular case, if Imperial Oil’s discriminatory acts had not occurred, Mr. Haseeb would not have had to choose between answering a discriminatory question about his eligibility to work in Canada on a permanent basis (on his application forms, at interviews and just before he was offered the job). Either Imperial Oil would not have asked such a question, or they would simply have asked whether he was eligible to work in Canada – to which he could truthfully have answered yes (with an explanation of his status).
The Tribunal concluded that if it were to put Mr. Haseeb in the position he would have been in had Imperial Oil not asked him discriminatory questions, he would not have lied, and therefore he would have been hired (based on his top ranking and the fact that the company had in fact offered him a job).
Mr. Haseeb’s Lost Income
The final step for the Tribunal? To calculate Mr. Haseeb’s losses – and this is where things get particularly interesting, and perhaps a bit worrisome for employers.
Unlike in wrongful dismissal cases, where the courts calculate damages based on an employee’s “reasonable notice” period, a human rights award for lost income covers the full period required to restore an employee to the position he would have been in had there been no discrimination. In some cases, the Tribunal will award full compensation for the entire period of unemployment or underemployment resulting from discriminatory termination – and that is indeed what happened in Mr. Haseeb’s case.
The Tribunal concluded that, based on the evidence, had Mr. Haseeb been hired by Imperial Oil, he would have remained employed by them from March 30, 2015 until May 3, 2019, when he left his employment with Deloitte to pursue other opportunities (minus the 10 month period when he was on an unpaid leave of absence) – a period of about 39 months (more than three years).
To calculate his lost income for this period, the Tribunal looked at what he actually made at Deloitte, compared with the starting salary he was offered by Imperial Oil plus the average annual salary increases received by the three engineers that Imperial Oil actually hired. The total compensation Imperial Oil owed to Mr. Haseeb for lost income? Over $100,000.
Add to that the $15,000 the Tribunal awarded him as compensation for injury to dignity, feelings and self-respect, and Imperial Oil’s “permanence requirement” ended up costing them over $125,000 for an employee they never actually employed.
Takeaways for Employers
So what are the takeaways from this case for employers?
- Review your hiring policies and practices. Provincial human rights tribunals can – and will –award significant compensation to individuals that you did not actually hire if there is evidence your reasons for not hiring them were discriminatory.
- You cannot require that job applicants be eligible to work in Canada on a permanent basis. It is permissible to ask and require that new hires be eligible to work in Canada at the time of hiring, but to require permanence is discriminatory under human rights legislation.
Have questions about your hiring policies or practices? Contact us!