In Kosovic v Niagara Caregivers and Personnel Ltd ("Kosovic"), the Ontario Human Rights Tribunal held that a recruitment agency's job application form that asked for the applicant's date of birth contravened the Ontario Human Rights Code. The Tribunal awarded the applicant $500 in damages to compensate him for injury to his dignity, self-respect and feelings, even though the applicant's answer to the question about his age was not the reason that he was not hired.
The agency in this case argued that a question about the applicant's date of birth was asked because work permits from the Canadian government, and the permits required the candidates' dates of birth. The Tribunal rejected this rationale and held that the date of birth requirement on the application form violated sections 5 and 23(2) of the Ontario Human Rights Code (the "Code"). The Tribunal reasoned that if an applicant's date of birth is necessary for a work permit, the recruitment agency should not make inquiries to obtain that information until after the application phase of the recruitment process.
The Tribunal did not make any orders in addition to the $500 in damages, because, by the time the hearing took place, the respondent's application forms no longer contained the question asking for the applicant's date of birth. Accordingly, there was no need for the Tribunal to order the recruitment agency to revise its application forms to comply with the Code or implement other policy oriented remedies.
This case shows the increasing scrutiny of employment decisions for age discrimination issues. Perhaps reflecting an aging workforce and heightened sensitivity to the challenges of older workers or others who may face discrimination on the basis of age. The case demonstrates the importance of being cautious in limiting the amount of information collected at the time of recruitment, to only what is necessary and not including information on any protected grounds under the Code. For example, questions that ask a candidate to identify his or her age, place of origin, or marital status may create risks of discrimination under the Code, unless there is a clear, Code compliant, reason for the employer to be asking such questions.
As was the case in Kosovic, whether the information is ultimately relied on in making a hiring decision may not be relevant for the purposes of evaluating whether the employer's application process complies with the Code. This points to a willingness of the Tribunal to find damages for harm to dignity even where there is no practical consequence of the Code contravention for the complainant. With such risks in mind, the best approach is to ensure that job application forms only ask candidates for information that is required to allow their candidacy to be assessed, which are oriented towards job requirements and, to the extent possible, not revealing of protected characteristics under the Code.
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