In the March 22 2018 decision in Kerdougli v Vie en Rose Inc (2018 QCTDP 8) the Human Rights Tribunal examined discrimination in hiring, specifically in regard to ethnic or national origin.

Facts

In Autumn 2015 plaintiff Salim Kerdougli, who is of Algerian origin, applied to the defendant, La Vie en Rose Inc, for the role of logistics coordinator, international division. He argued that he had not obtained the role because of his ethnic origin. At his hiring interview, a La Vie en Rose representative asked him: "What is the origin of your name?"

Kerdougli claimed to have been discriminated against on the basis of his ethnic origin, contrary to Sections 4, 10, 16 and 18.1 of the Charter of Human Rights and Liberties. He felt insulted and that his dignity had been infringed by the question.

La Vie en Rose stated that the purpose of the question was to verify the representative's hypothesis that Kerdougli was of Algerian, Moroccan or Tunisian origin, since some of La Vie en Rose's business partners are located in those countries.

When his application was unsuccessful, Kerdougli claimed C$50,000 in moral damages and C$25,000 in punitive damages.

After investigating Kerdougli's complaint, the Human and Youth Rights Commission concluded that there was insufficient evidence to support the allegation of a discriminatory refusal to hire and ceased to act in regard to that aspect of the case. However, since it found that Kerdougli had been asked a question at the interview relating to his ethnic origin, there was sufficient evidence of interference with his right to a non-discriminatory selection process for the matter to be submitted to a tribunal. Accordingly, Kerdougli applied to the Human Rights Tribunal under Section 84 of the Charter of Human Rights and Liberties.

Decision

The tribunal first had to determine whether the information about the origin of Kerdougli's name related to the aptitudes or qualifications required for the role offered. If it did not, the tribunal had to determine the appropriate amount of damages to be awarded.

The tribunal opined that the purpose of Section 18.1 of the Charter of Human Rights and Liberties is to eliminate discrimination in hiring at its roots by prohibiting any question relating to a personal characteristic. Accordingly, a mere question relating to one of the grounds listed in Section 10 of the charter constitutes automatic violation of Section 18.1. Exceptions arise when the information is necessary:

  • based on an aptitude or qualification required for the employment (Section 20 of the charter); or
  • for the implementation of an affirmative action programme in existence at the time of the application.

The fact that the question may have been asked out of mere "curiosity, to break the ice or lighten the mood" does not justify interference with the right protected under Section 18.1 of the charter.

La Vie en Rose argued that Kerdougli's ethnic origin could have been an asset for the job. However, Kerdougli was not asked about the ties that he maintained with his country of origin. The evidence showed that the other candidate applying for the role was not asked the same question.

Therefore, the tribunal determined that Kerdougli had been discriminated against.

Damages Kerdougli stated that the action had unnerved him and made him feel uncomfortable, in addition to fearing that he would be discriminated against during the hiring process.

The tribunal commented on the fact that it was common to ask certain questions concerning the grounds set out in Section 10 of the charter at job interviews, and awarded Kerdougli C$5,000 as moral damages.

Since there had been no intentional violation by the La Vie en Rose representative, Kerdougli was awarded no punitive damages.

Comment

The decision is a reminder of the importance of the types of question asked at job interviews and urges an end to the common practice of asking questions relating to a prohibited ground of discrimination under the Charter of Human Rights and Liberties.

Questions about the origin of a name must relate to the aptitudes or qualifications required for employment. Otherwise, as La Vie en Rose has shown, curiosity comes at a price.

For further information on this topic please contact Magali Cournoyer-Proulx or Valérie McDuff at Fasken by telephone (+1 514 397 7400) or email (mproulx@fasken.com or vgareau@fasken.com). The Fasken Martineau DuMoulin LLP website can be accessed at www.fasken.com.

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