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February 7, 2013

Human Rights Tribunal Orders Employer to Stop Requesting Birth Certificates and Driver’s Licenses Prior to Interviews

Authors Malcolm MacKillop and Todd Weisberg

In Shaw v. Ottawa (City), [2012] OHRTD No. 580, the Applicant (“Shaw”), filed a complaint with the Human Rights Tribunal following two failed attempts to get an entry-level job as a firefighter with the Respondent (the “City of Ottawa”).  In his complaint, Shaw alleged that he was discriminated against on the basis of age for the following reasons:  (1) the City of Ottawa’s point system for assessing job applications discriminated against older candidates; (2) the City of Ottawa required Shaw to submit documents during the hiring process that disclosed his age; and (3) the City of Ottawa did not hire Shaw as a probationary firefighter because he was an older candidate.

In 2005, the City of Ottawa advertised for the position of probationary entry level firefighter.  Shaw was 37 years old at the time of this advertisement.  The recruitment process took place in four stages:  (1) screening of applications for minimal qualifications; (2) written examinations; (3) physical ability test; and (4) interviews.  The interview stage did not occur until 2008, at which point Shaw was 40 years old.  Shaw was not awarded the position.

In 2008, Shaw applied for another job with the City of Ottawa.  Shaw made it through the first three stages, but claimed he was not offered a final interview.  Shaw alleged that the reason for this was that the City of Ottawa was now aware of his age after having provided his birth certificate and driver’s license prior to the interviews for the first job opening.

The City of Ottawa requested that the Tribunal dismiss the application on the basis that Shaw failed to establish a prima facie case of discrimination.  Following oral submissions, the Tribunal dismissed Shaw’s claim, but ordered the City of Ottawa to cease and desist from requiring candidates for firefighter positions to provide copies of documents that contain their birth dates and other Code ground identifiers during the application and interview process.

The Tribunal noted that the request for a birth certificate, passport and/or driver’s license gave the City of Ottawa the opportunity to classify candidates based on age, as well as other grounds like place of origin.  Based on this finding, the Tribunal found that the City of Ottawa infringed sub-section 23 (2) of the Ontario Human Rights Code (the “Code”) by making a written inquiry to the Applicant that indirectly classified him by age.

By finding a breach of sub-section 23 (2) of the Code, the Tribunal implicitly held that an employer cannot request such documents, regardless of whether there is a bona fide occupational requirement for such a request.  In this case the bona fide occupational requirement for the request was to show that the applicant Shaw had a valid license to operate a fire truck.  The Tribunal further noted that the employer could only request such documents after a conditional offer of employment was made, or alternatively if it requested such documents prior to a conditional offer being made, the date of birth and any other Code identifiers must be blacked out before the documents are submitted.

Practically speaking, one would assume that sub-section 23 (2) of the Code would only be at issue where the Tribunal found that the requested documents were actually being used by the employer to classify candidates by age or other Code prohibited grounds.  The Tribunal concluded that the City of Ottawa was not actually engaging in such misconduct.  The Tribunal concluded the City of Ottawa committed a mere technical violation of the Code.  The Tribunal declined to award any monetary damages to Shaw, as there was no evidence that the written request for the birth certificate and driver’s license resulted in any injury to Shaw’s dignity, feelings and self-respect. 

While such a decision appears to be somewhat impractical in the working world, employers must be conscious of its implications.  A breach of the Code will occur when documents that contain Code identifiers are requested prior to a conditional job offer being made, even when the documents are not used for an improper purpose and are requested for a bona fide occupational requirement. 

Employers who require documents that contain Code identifiers to ensure that job applicants satisfy a bona fide occupational requirement will be strictly held to the two options outlined in the Shaw case: (1) make a conditional job offer subject to proof of the bona fide occupational requirement; or (2) ask for the documents before making any job offer, but ensure that any Code identifiers are blacked out on the documents.

Making conditional job offers subject to the applicant providing proof he or she meets a bona fide occupational requirement will in most cases be viewed as cumbersome and inefficient.  Most employers will not wish to waste time and money on interviewing candidates who don’t have the minimum required credentials.  Therefore employers who wish to streamline their hiring process will have to turn to the second option presented by the Tribunal. 

If an employer chooses the second option a question arises as to whether it is the obligation of the employer to ensure that such Code identifiers are blacked out by the applicant prior to being submitted.  The practical answer would appear to be no.  If the applicant has submitted documents that contain Code identifiers after a request to black them out has been made, the applicant should be seen as having voluntarily provided this information to the employer.  However, in order to avoid any potential breaches of the Code, it is probably best to return the documents to the employee and make a second request that the Code identifiers be blacked out. All requests to black out Code identifiers should be made in writing and specifically list what areas of the document need to be blacked out.

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