Accounting for Law
Employment & Labour

Asking applicant age qualifies as discrimination

By Doug MacLeod

Section 23 of the Ontario Human Rights Code states that discrimination occurs when an oral inquiry is made of an applicant that classifies or indicates qualifications by age. 

In a recent decision, an adjudicator under the Code concluded that an employer had discriminated against a job applicant on the basis of age.  Read Rocha v. Pardons and Waivers Canada

In this case, a woman applied for a job online and based on her application the employer scheduled an interview. Before the interview occurred, a representative from the employer spoke to the applicant on the phone and during this call asked the applicant her age, which was 45. Thereafter the interview was cancelled. The applicant was informed by email that "a placement was not suitable for the position."

It is interesting to note that the employer did not respond to the human rights complaint and did not attend the hearing - presumably because the employer did not think there was much risk the adjudicator would conclude discrimination had occurred. It is also interesting to note that the job applicant represented herself, which demonstrates that it costs an individual nothing to bring a human rights complaint to a hearing.

Based on s. 23 of the Code, and the facts of this case, this decision is not surprising but it is a cautionary tale for employers.

There are very few (if any) jobs where age is a reasonable and bona fide job requirement. So there is no reason to ask for a person's age in the hiring process. Doing so will only open up the employer to a human rights complaint.

An employer cannot discriminate in employment on 16 prohibited grounds; namely; race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status and disability.

An employer should therefore carefully review its job applications to ensure that questions on these grounds are not asked. Similarly, when communicating with job applicants before interviews and at job interviews, an employer should not ask questions in connection with these 16 areas.

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