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Bulletin

What is the origin of your name? – not as innocent a question as it seems

Fasken
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Labour, Employment and Human Rights Bulletin

In a decision dated March 22, 2018 in Kerdougli v. Vie en Rose Inc.[1], the Human Rights Tribunal examined discrimination in hiring, specifically regarding ethnic or national origin.

The parties involved were the plaintiff, Salim Kerdougli (“Mr. Kerdougli”), who represented himself, and the defendant, La Vie en Rose Inc. (“La Vie en Rose”).

The Commission des droits de la personne et des droits de la jeunesse (the “Commission”) was not a party to the case. After investigating Mr. Kerdougli’s complaint, it had concluded that there was insufficient evidence to support the allegation of a discriminatory refusal to hire, and it ceased to act in respect of that aspect of the case. However, since it had found that the plaintiff had been asked a question at the interview relating to his ethnic origin, there was sufficient evidence of interference with Mr. Kerdougli’s right to a non-discriminatory selection process for the matter to be submitted to a tribunal. Accordingly, the plaintiff decided to apply to the Tribunal himself, as section 84 of the Charter of Human Rights and Freedoms (the “Charter”) allowed him to do.

Facts

In the fall of 2015, Mr. Kerdougli, who is of Algerian origin, applied to La Vie en Rose for the position of logistics coordinator - international division. He stated that he had not obtained the position he was seeking because of his ethnic origin. At his hiring interview, a representative of La Vie en Rose asked him: “What is the origin of your name?”

Mr. Kerdougli claims to have been discriminated against on the basis of his ethnic origin, contrary to sections 4, 10, 16 and 18.1 of the Charter. He felt insulted and felt that his dignity was infringed by the question.

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

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

Decision

The Tribunal first had to determine whether the information about the origin of his name was related to the aptitudes or qualifications required for the position offered. If it was not, the Tribunal had to determine the appropriate amount of the damages to be awarded.

In the opinion of the Tribunal, the purpose of section 18.1 of the Charter 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 results in an automatic violation of section 18.1. The two 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 program in existence at the time of the application.

On that point, the fact that the question might have been asked out of mere [TRANSLATION] “curiosity, to break the ice or lighten the mood” cannot justify interference with the right protected by section 18.1.

In this case, La Vie en Rose alleged that Mr. Kerdougli’s ethnic origin could have been an asset for the job. However, Mr. Kerdougli was not asked about what ties he maintained with his country of origin. The evidence showed that the other candidate who was applying for the same position was not asked the same question.

The Tribunal therefore determined that the discrimination against Mr. Kerdougli had been proved.

Damages 

Mr. Kerdougli stated that it had unnerved him and he felt uncomfortable, in addition to fearing that he would be discriminated against during the hiring process.

The Tribunal in this case commented on the fact that it was commonplace to ask certain questions concerning the grounds set out in section 10 of the Charter at job interviews, and awarded Mr. Kerdougli $5,000 as moral damages.

Since there had been no intentional violation by the La Vie en Rose representative, the plaintiff was not awarded punitive damages.

Conclusion

This decision is a reminder of the importance of the types of questions 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.

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



[1] 2018 QCTDP 8

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