Headhunter discriminates, employer pays the price?

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An Ontario employer must pay $5,000 in damages after a consultant hired by the organization discriminated against a candidate based on their age.
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. 
  • Andrew J. Yu on 2014-05-12 2:48:52 PM

    A reminder that employers can be held liable for damages and/or unprofessional conduct committed by consultants. In Canada, it is strongly advised that employers look for a CHRP or SHRP designation in a human resources consultant, in addition to adequate professional liability insurance.

  • David on 2014-05-12 3:05:32 PM

    @Andrew J. Yu...

    I would argue in Canada it is strongly advised that employers look towards an experienced, reputable firm for any 3rd party assistance.

    A CHRP/SHRP isn't required or a sure way to avoid potential problems...please dont advertise on here, per the criteria below

  • Yvonne on 2014-05-12 5:28:51 PM

    @David: since CHRP is the nationally recognized HR professional designation in Canada, it is the best assurance to managers and executives that the consultant they are hiring conducts the work in accordance with professional standards. In the absence of such a designation, it is “let the buyer beware”.

    Your allegation that Mr. Yu is advertising through his comment is unsubstantiated and unfair. We don’t even know if Mr. Yu is a HR consultant or not. Perhaps he is a manager who was previously burned by a HR consultant with no designation. I believe you owe Mr. Yu an apology.

  • Danny G on 2014-05-12 10:17:44 PM

    @David - suggesting that employers hire a consultant with a CHRP / SHRP designation is just that - a suggestion. Its no different than suggesting you should hire a CA to do your accounting. I don't see how that is advertising; although I don't disagree that there are plenty of well qualified consultants who don't have either of those designations...

  • Mike on 2014-05-13 8:20:20 AM

    It is unfortunate but employers discriminate against older workers all the time. The 3rd party agencies are given instructions on what to look for by the client. This has been going on for years.

  • sarah gayer on 2014-05-13 10:28:07 AM

    As a consultant, I have to hold myself to a higher standard as my reputation depends on it. Should my client ask me to do something that I think is not appropriate I will walk away. Employers need to understand that the third party is out there representing them for example in the job search and is therefore an extension of that employer. How they conduct themselves is a reflection on the employer. it is easy to use a third party to do those things that you would say you never would do. When hiring a consultant or any third party please do your due diligence. Ensure they are qualified, ask them for references, ask if they do have liability insurance, just in case. Do not go with someone who is the least expensive remember you get what you pay for.

  • Corette Miller on 2014-05-14 2:57:53 PM

    This situation re-enforces the need for experienced HR to ensure the employer hires smart...know what you want and be very clear at the beginning of the job search...I'm confused if the 3rd party agent was an "headhunter" or a Human Resourcees consultant...two different fields.

  • Willo on 2014-05-16 3:03:00 PM

    I have to agree with Mike. I believe age discrimination is rampant. It is corporate Canada's dirty little secret....and HR is in on it.
    North Americans don't value wisdom and experience. Really...it 's shameful and a tremendous waste. I cannot understand what we are afraid of.

  • sarah gayer on 2014-05-16 3:39:28 PM

    The headhunter in the industry is considered to be human resources/HR or an extension of HR. HR will do what the management wants them to do unfortunately. These people will one day be older and not much wiser.

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