Employers cannot generally refuse to hire an applicant, because the employer would prefer a male, as opposed to a female candidate. This would be discrimination on the basis of sex or gender, a ground prohibited in the Human Rights Code. An example illustrating gender discrimination is Garand v. K.E. Gostlin Enterprises Ltd ( c.o.b. Canadian Tire), involving a Kelowna business.
Garand worked her way up to automotive manager at a large Canadian Tire store in Saskatchewan. She had 17 years of Canadian Tire experience, 14 years in management, including 10 as an automotive manager. At the time that she left for the Kelowna store, she was the automotive manager. Garand had joined the staff of the Kelowna store in a position of automotive manager-in-training on October 26, 1998. The employer hired a new male automotive manager less than three months later.
Garand quit her job, almost immediately after she met the male manager. In that meeting, Ms. Garand said that the male manager told her that he had about six months management experience, did not have good product knowledge, and that he would need her assistance on the floor. After Garand told the male manager of her extensive management experience, he disclosed to Garand that he only planned to stay for a year as the automotive manager, and if she worked hard she could have the job after he left. Garand quit after she raised her concerns, and encountered an unsympathetic and smirking general manager of the employer. She claimed that she was the victim of sex discrimination and that her rights under the Human Rights Code were violated.
It is clear that Garand had qualifications, equal to or better than the male manager, and the difference between the two candidates (gender) is a prohibited ground set out in s. 7 of the Human Rights Code. In a human rights analysis this is called a prima facie case for discrimination. A prima facie case is one that will succeed, unless the employer can lead credible evidence of a non-discriminatory explanation for its conduct. The employer must show that the decision was made without discrimination, or must show there that there was a bona fide occupational requirement for making the selection decision in the way it was made.
In human rights cases it is not necessary for the complainant to prove that gender was the sole reason for the decision, as long as it is clear that gender was a reason for the decision. It is not necessary for a complainant to show that the employer intended to discriminate, as our Supreme Court of Canada has held that in discrimination cases, discrimination can occur without intent.
The Tribunal found that there was discrimination, on the basis of sex, in the hiring process of Mr. Thompson and awarded Ms. Garand damages for hurt feelings, and damages for lost wages. In determining that the employer discriminated against Ms. Garand the Tribunal also considered the following facts. The employer was found to have made no effort to prepare or groom Ms. Garand for the manager’s position while she was the assistant manager, but rather used her to get through a busy Christmas season. The employer did not discuss with Garand the substantial changes that the employer intended to make in the automotive department in the new year. Garand was ignored when she presented initiatives. One initiative that she presented which was agreed to by the employer, was later cancelled by the employer after talking with one of Garand’s staff. Ms. Garand was told of the cancellation at a manager’s meeting while reporting on the progress of the project. During her hiring interview, Garand was asked a question which offended the Human Rights Code. Shortly before the employer hired the male manager, the general manager of the employer directed Ms. Garand’s supervisor to revise a favourable performance appraisal.
Credibility always plays a factor in human rights cases, and the Tribunal preferred Garand’s witnesses. The defence advanced by the employer was that while Garand was technically qualified for the job, Garand did not get the job because of poor interpersonal and human resource management skills. The Tribunal rejected this defence, and the quality of evidence in support of the defence may have been lacking. While this may have been a matter of evidence, as a matter of proof, it is likely easier to prove technical competence such as product knowledge, than to prove that someone is lacking in interpersonal skills which is something more fuzzy, more subjective, and open to interpretation. In any event, the explanation was not sufficient overcome the obvious fact that the more experienced manager in waiting was bypassed by a less experienced, and perhaps more personable candidate, and that gender was a factor which distinguished the successful and unsuccessful candidate.
Paul Love, Arbitrator & Mediator