Introduction

Much ink has been spilled over a recent decision by the Public Service Commission of Canada on the topic of discriminatory interview practices. In Association des procureurs aux poursuites criminelles et pénales et Directeur des poursuites criminelles et pénales (2018 QCCFP 20) the commission found that the plaintiff had been discriminated against when she was denied a role due to her pregnancy. The commission's decision was based on the employer's comments and questions before and during the plaintiff's interview. As a result, the commission ordered that the plaintiff be granted the role.

Facts

Following R v Jordan (2016 SCC 27) – a landmark decision rendered by the Supreme Court of Canada on the subject of delays for a defendant to be heard – the Director of Criminal and Penal Prosecutions (DCPP) created numerous new legal roles in order to reduce such delays. The plaintiff was already a lawyer with the DCPP when she found out that she was pregnant and applied for one of the newly created roles.

When the plaintiff's manager, who was also a member of the selection committee, found out that she had applied for one of the new roles, she told the plaintiff: "you can't apply, you won't be here" (translation), referring to the fact that the plaintiff would be on maternity and parental leave, and therefore would not be available to start immediately. Further, during the interview, the plaintiff was asked whether she was going to take a long or short leave following the birth of her child.

Before the interview, the plaintiff was ranked highest out of the candidates who had applied and were selected for an interview, due to her experience and previous evaluations. Following the interview, she was ranked third. Therefore, she did not get the role. The employer explained that the plaintiff was not selected for the role because she did not "sell herself" (translation) well during the interview.

Decision

In its decision, the Public Service Commission applied the two-prong analysis confirmed by the 2015 Supreme Court decision in Bombardier, which involves determining:

  • whether there is prima facie discrimination; and
  • if so, whether the contested decision is justified in some other manner.

The commission determined that there was a clear link between the plaintiff's pregnancy – which is a prohibited ground of discrimination under the Quebec Charter of Human Rights and Freedoms – and the refusal to grant her the role. The DCPP knew that the plaintiff was pregnant during the interview process and asked her a question directly related to her pregnancy which had no relevancy to the role. The commission held that such a question and any other sensitive question relating to a person's pregnancy are illegal and must not be asked during an interview, as candidates must not be asked questions based on prohibited grounds of discrimination during such a process. Moreover, the commission found that the manager's comment before the interview relating to the plaintiff's absence from work during her maternity and parental leave was also discriminatory.

The commission explained that it was inconceivable that the plaintiff went from being ranked highest before the interview to being ranked third after the interview and ultimately failing to get the role only because she did not "sell herself" well during the interview. The plaintiff was the most experienced candidate and should have been offered the role. The commission concluded its analysis by stating that the plaintiff's candidacy was refused simply because she was not going to be immediately available due to her maternity and parental leave.

The commission determined that the only appropriate remedy was to order that the plaintiff be granted the role. Reconducting the interview or the selection process would give the employer another opportunity to refuse her candidacy. The commission found that the plaintiff should have been offered the role in the first place; therefore, it ordered that the employer grant her that role.

Comment

The decision serves as a cautionary tale for employers not only with regard to the types of question that may be asked during interviews, but also with regard to comments that may be made before an interview. Further, although not expressly mentioned in the decision, the employer's need to fill the role quickly did not seem to be a valid justification for refusing the plaintiff's candidacy. Indeed, an employer can hire a temporary employee to fill a vacancy during an employee's maternity and parental leave.

Finally, the decision is one of many recent human rights decisions in Quebec whereby the tribunals have found that a candidate was discriminated against mainly because of questions that were asked during the interview process.(1) Therefore, employers – especially those in Quebec – should consider updating their interview protocols or providing additional training to interviewers in order to reduce the risk of having discrimination complaints filed by unsuccessful candidates.

For further information on this topic please contact Michael Adams at Fasken by telephone (+1 514 397 7400) or email (madams@fasken.com). The Fasken website can be accessed at www.fasken.com.

Endnotes

(1) See Kerdougli v Vie en Rose Inc (2018 QCTDP 8), Kerdougli v Les Aliments Multibar Inc (2018 QCTDP 19) and Kerdougli v GE Renewable Energy Canada Inc (2018 QCTDP 7).

This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.