Employer Liable Under Human Rights for Consultant’s Discriminatory Action

April 1, 2014

While many employers in Canada understand that they have obligations under human rights legislation, they likely do not appreciate that they can also be liable if a consultant contracted to provide services on their behalf engages in discriminatory action. This is what occurred in Ontario in the recent case of Reiss v CCH Canadian Limited, 2013 HRTO 764.

CCH Canadian Limited engaged the services a human resources consultant to help hire new employees. Reiss, a sixty year-old lawyer, applied for two positions at CCH as a legal writer. Although he had thirty years of experience in the area, he was not selected for testing or an interview. He filed a complaint with the Ontario Human Rights Tribunal alleging that he was not considered for the position because of discrimination on the basis of age.

At the hearing, witnesses for CCH Canadian Limited testified that they had asked the consultant to place Reiss’ application “on hold” because they were scheduled to interview two candidates who had applied before him. Despite this direction, the consultant informed Reiss that his application had been rejected because CCH was moving toward more junior candidates with lower salary expectations. The consultant admitted at the hearing that this information was not accurate and had not come from CCH.

The Tribunal found that the fact that the consultant had told Reiss that CCH was moving toward more junior candidates with lower salary expectations was “suggestive of a stereotyped assumption that an older person would necessarily want a higher salary and would therefore not be a good candidate.” (para 85) The Tribunal found that the consultant’s communication had an adverse effect on Reiss because if he had not incorrectly told Reiss that CCH had rejected his application, Reiss would have followed up with respect to the position.

The Tribunal found that while Reiss had not established that CCH discriminated against him on the basis of age, the consultant’s communications with Reiss were tainted by age discrimination.

Reiss was awarded compensation for injury to his dignity, feelings and self-respect as a result of discrimination resulting from the consultant’s provision of inaccurate information about the status of his job application in the amount of $5,000.00. The Tribunal found that although the consultant was not an employee of CCH, he was their agent and CCH had accepted any potential liability with respect to his actions.

This decision serves as a reminder to employers that they have to ensure not only that they do not engage in discrimination, but also that no one acting on their behalf engages in discrimination. While it can be difficult at times to control the actions of a consultant, it is important that employers clearly outline their expectation that all consultants, contractors and agents will uphold their human rights obligations and communicate accurately on their behalf.

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