Despite the employer’s lack of direct involvement, the tribunal found it was liable for the discrimination in Reiss v. CCH Canadian Limited.
The case involved a 60-year-old lawyer with many years of private practice experience, who applied for a position with a legal publishing company. He was contacted by the consultant for the position and named a salary range that was within the budget, however, emails between the consultant and employer showed they were concerned he was “overqualified” and had intentionally withheld information about how senior he was.
When told he had not been selected for the position, the complainant asked for feedback about the reason and the consultant responded, "I don't have all the feedback on everyone yet, individually, but it is looking like they are moving toward candidates that are more junior in their experience and salary expectation."
The tribunal found that the employer had non-discriminatory reasons for rejecting the application, based on some of the other factors in his application. However, the consultant’s email indicating the employer was seeking candidates with junior qualifications and salary expectations was false, and the tribunal found he prevented the complainant following up with the employer.
Most important for employers, according to Field LLP lawyer Joel Fairbrother, was the tribunal’s decision to attribute the discriminatory act of the consultant to the employer, on the basis that the consultant was acting as the employer's agent.
“The tribunal noted that this was not a denial of an interview but the prevention of follow up, which was damage of a more limited nature because it was not guaranteed that he would have been given an interview had he followed up,” Fairbrother said.
The tribunal found the complainant was not entitled to damages for lost wages, but awarded $5000 in damages against the employer for injury to dignity, feelings and self-respect as a result of the consultant's discrimination.
“Reiss is important because the employer was found liable for discrimination in employment despite not directly participating in that discrimination; it was not the employer's discrimination but rather that of the consultant,” Fairbrother said.
He added that if the tribunal had found the consultant had more say in the employment process, past the initial stages, the damages could have been much higher.
“The damages were not substantial in this case, but the reasoning suggests that they could be substantial in a slightly different factual context,” he said.
An Ontario employer must pay $5,000 in damages after a consultant hired by the organization discriminated against a candidate based on their age.