Written on behalf of Peter McSherry
A 51-year old police candidate has filed a human rights complaint against the Toronto Police Service (TPS) alleging age discrimination after she was unsuccessful in the process of becoming an officer.
The claimant filed her complaint in summer of 2016. In it, she alleges that she was discriminated against as a candidate because of her age, and, moreover was “systematically lied to” about her standing in the hiring process.
The main crux of the claimant’s position was a discriminatory question she says she asked by a police “background officer” during the latter stages of the recruitment procedure. In April of 2014, approximately three years into the lengthy TPS hiring process, the claimant says the background officer contacted her to invite her to a recruiting class. At the time, the claimant’s three-year police certification test had just expired. The background officer told her she would need to redo and resubmit the paperwork. It was during this same conversation that the background officer asked the complainant how old she was. This raised a red flag for the claimant, and she immediately inquired whether she was still in contention to join the spring recruitment class. She was informed that she was.
Several months later, the claimant underwent a required psych assessment. When she subsequently heard nothing back from the TPS, she followed up with the same background officer. She was informed that she had successfully passed the background checks phase of recruitment and that her application had moved to the next stage of the process, which was the offer stage.
Three months later she received a letter informing her that she had been declined, with no further explanation. According to the claimant, she then contacted a staff sergeant at TPS’ employment unit, seeking further information. The claimant shared her frustration about being led to believe that she was still in contention for hiring and also about being asked about her age. The staff sergeant responded that the claimant had not worked for 14 years, that the TPS was undergoing hiring cuts, and that there were many other qualified candidates.
The claimant believes that she was discriminated against based on her age, and that the background officer’s question about her age, and her subsequent failure to proceed in the hiring process is evidence of this discrimination.
Age Discrimination in Ontario
The Ontario Human Rights Code protects people from discrimination based on age. Based on Ontario law, everyone is entitled to the same chances in employment as everyone else and cannot be denied training, a job, or a promotion, or be forced to retire (with some exceptions) because of their age.
Section 24(2) of the Code specifically prohibits employers from asking candidates questions about prohibited grounds during a job interview. In addition to anything pertaining to the candidates age, employers cannot directly or indirectly ask an applicant about their race, religion, sexual orientation, marital status, and place of origin. Answers to any of these questions are irrelevant to the employer’s assessment of the candidate’s suitability for the job.
Potential Outcomes in this Matter
Despite its inappropriateness, the TPS’ question about the claimant’s age is not, in and of itself, evidence of discrimination. Even if the TPS asked the claimant how told she was, this does not necessarily mean that they subsequently denied her employment based on her answer. The fact that they asked her an unlawful question is a separate issue from that of their final hiring decision. In response to the claimant’s argument, the TPS may admit that they should not have asked her any age-related questions, however, could argue that the claimant’s age had nothing to do with their ultimate decision about her candidacy. However, the fact that the age question was posed does reflect negatively on the TPS and will certainly be a factor in the HRTO’s final decision on whether the claimant was discriminated against.
Furthermore, the TPS might argue that age is a “bona-fide occupational requirement”. To be successful with this position, the TPS would have to argue that it is reasonable not to hire older applicants (like the claimant) because of the nature of police work. Indeed, despite the abolition of mandatory retirement in Ontario, there remain some industries (namely firefighting and aviation) in which mandatory retirement is still enforced and it is impossible to continue to work in certain roles past a certain age due to perceived health and other risks. It will be interesting to see whether the reasoning used by employers in such cases would be applicable in this instance, particularly as this candidate successfully proceeded well into the hiring process and passed a psych exam.
It remains to be seen what the final decision in this case will be. It certainly raises some thought-provoking questions about discrimination, age, and suitability for work in specific industries. This blog will follow developments in this case and provide updates as more information becomes available.
In the meantime, if you think you’ve been subject to age discrimination in the hiring process, or in the workplace, contact employment lawyer Peter McSherry online or at 519-821-5465.