Can an employer discriminate against Sabbath observers in the course of interviews for employment in Ontario? If not, what kinds of penalties can employers face when they discriminate in this fashion? A recent Ontario Human Rights Tribunal case awarded an applicant $4,000 in damages for injury to “dignity, feelings and self-respect” when she was screened out of a job due to her Sabbath observance.
L.W. is a Seventh Day Adventist. She applied for a position with the Desjardins Group. The position was a short-term contract to work in a call centre. Ms W was asked in the interview process if she could work on Saturdays. She indicated that she could not since this was her Sabbath. According to the findings of the Tribunal, she was then “screened out” from any further interview process and was not considered for the position.
Surprisingly, the Tribunal held that it was permissible for employers to ask about work availability. The Tribunal noted that there was no evidence in this case to indicate that the question was being asked in order to “classify” the applicant by her creed.
However, the Tribunal went on to conclude that the applicant’s inability to work on Saturdays for religious reasons led her to being screened out from any further interview process. In other words, she was subjected to discrimination on the basis of her creed by the Desjardins Group, according to the Tribunal. It is hard to see how this type of conduct could be prevented if the Tribunal is correct that applicants can be asked by an employer about work availability.
Nevertheless, the Tribunal found that Ms W. had been subjected to discriminatory treatment. It awarded her the grand total of $4,000. This hardly seems like a sufficient incentive to deter employers from discriminating on the basis of creed. Part of the reason for the modest award was that Ms W., apparently, did not provide evidence of any steps that she had taken to try to find other employment. But these damages are of a different type. The $4,000 was awarded as “general damages.” This should reflect the Tribunal’s view of the respondent’s conduct and its impact on the applicant. $4,000 does not seem like very much of a deterrent. I would have thought that $25,000 or $30,000 or even as much as $50,000 would have been an appropriate message to send in light of the seriousness of the impugned conduct and the findings of the Tribunal.
This aspect of the case reminds Ontario residents that even where discriminatory conduct has been proven, the Ontario Human Rights Tribunal may not award a very significant amount of money. Further since the Ontario Human Rights Tribunal does not award payment of legal fees to successful parties, this type of hearing could be very costly for a claimant. In many cases, it may make much more sense for a litigant to file a lawsuit in the Ontario Superior Court and to consider asking a jury for its assessment of damages. A large jury award might serve as a much better deterrent than the modest sum that was awarded in the Desjardins and W. case.