Written by Lewis Waring, Paralegal, Editor at First Reference
In Moore v Ferro (Estate), 2019 HRTO 526 (CanLII) (“Moore”), a British-trained lawyer licensed to practice in Ontario applied for a position at a law firm and was denied. The applicant responded to his denial by claiming that the law firm had discriminated against him in violation of the Ontario Human Rights Code.
The nature of that discrimination, the applicant claimed, was based upon his race and age and was demonstrated by the firm’s interview procedure, refusal to hire him and the language used in their correspondence with him. The applicant also alleged that the firm failed to investigate and, in fact, reprised against him after he made accusations of discrimination. In the end, the Human Rights Tribunal of Ontario (“the Tribunal”) found that the firm had discriminated against the applicant based on race and age, had failed to investigate and had engaged in reprisal.
The Tribunal’s decision focused heavily upon the firm’s conduct after the applicant had accused it of discrimination. It did not agree with the applicant in many respects. For example, although the Tribunal did find that the firm’s conduct and correspondence during the interview process were discriminatory in some instances, it did not find that any such discrimination was the determinative reason for the applicant’s failure to obtain an offer of employment. Instead, it found that the firm’s discrimination largely occurred after the applicant made allegations of discrimination.
On March 22, 2019, the Tribunal found that the application for discrimination succeeded and ordered the firm pay the applicant $2,000 in general damages for injury to dignity, feelings and self-respect.
In 2011, at the time of the events, the lawyer, Philton Moore (“Mr. Moore”), was 45 years old. Mr. Moore identifies as black and is of Afro-Caribbean descent. Prior to moving to Canada, Mr. Moore lived in the United Kingdom, where he worked as a lawyer for seven years and taught as a part-time professor of law for two of those years. Before his time as a lawyer, Mr. Moore had been employed as a nurse. Mr. Moore, after moving to Canada, was called to the bar in Ontario in 2010.
The law firm, which carries on business as Ferro & Company (“the Firm”), was owned by Lou Ferro. The interview process, however, was overseen by Mr. Ferro’s wife at the time, Ellen Helden (“Ms. Helden”). It should be noted that before the proceedings concluded, Mr. Ferro passed away and, as such, the claim was directed against his estate.
In 2011, the Firm put out an advertisement seeking new employees. Although the actual advertisement was not recovered to be included as evidence in the hearing, it was estimated that the Firm had been seeking to hire a junior lawyer. After responding to the Firm’s advertisement, Mr. Moore attended an initial interview in which no questions were asked about experience. When Mr. Moore said that he had no experience, the firm replied that training would be provided, suggesting that a lack of experience was not a material issue. The Firm invited Mr. Moore to a second interview, which ended up being a group interview between, on one side, Mr. Moore and two other applicants, and, on the other side, Ms. Helden and a few other associates.
This second interview, found by the Tribunal to be unconventional and even bizarre, involved a loose structure of questioning. During the interview, Ms. Helden referred to the importance of finding a candidate who was a good “fit” for the firm. After the interview, the Firm’s post-mortem notes indicated that Mr. Moore was seen to be “older” with “already entrenched habits,” whereas another candidate was referred to as “young” with a “competitive edge.” Furthermore, Mr. Moore was referred to as “long-winded,” which the noted postulated to be a “possible British thing.” As a result of the interview process, the Firm hired none of the candidates, saying “overall we need a better pool of candidates.”
After the interview, Mr. Moore requested feedback from the Firm and eventually convinced the Firm to allow him to advance to the next stage of the hiring process by interviewing with Ms. Helden. In that interview, Ms. Helden referred to Mr. Moore as “pushy” and told him that she “thought you had more nursing experience than you had.” She went on to repeat the importance of fit over qualifications and said that the Firm had hired an older lawyer who had problems adapting in comparison to another hire who was younger and had adapted more easily.
After this third interview, Mr. Moore was invited on short notice to a meeting with senior staff. The Firm failed to reach Mr. Moore because he was out of town when the Firm called to invite him. This was the end of the Firm’s engagement with Mr. Moore in the recruitment process.
After Mr. Moore learned of the missed interview, he continued corresponding with the Firm and eventually got into a heated exchange with Mr. Ferro in which he accused the latter of discrimination. Mr. Ferro denied discriminating against Mr. Moore and made numerous negative comments related to Mr. Moore’s personal qualifications and questioned his motivations for claiming discrimination and even for applying to the position in the first place.
The Tribunal found that the Firm made comments during the interview process that stigmatized Mr. Moore because of his age, making generalizations concerning his abilities and contrasting his perceived age-related negative qualities with another candidate who was younger and seen to be mentally fast and opinionated. The Firm assumed that Mr. Moore had “already entrenched habits” while they described another applicant as “ambitious.” The Firm’s internal written documentation concerning Mr. Moore’s interview led the Tribunal to agree that the Firm did discriminate against him during the interview process.
The Tribunal did not find that the Firm discriminated against Mr. Moore during the interview process. Mr. Moore had relied upon evidence that the Firm had repeatedly said that they were seeking a candidate that was a good “fit.” Mr. Moore referenced academic material that showed that the particular quality of being “fit” is subject to arbitrary subjectivity and can easily cause disadvantage to racialized applicants. Although the Tribunal did agree that such a criterion was arbitrary and dangerous, it did not agree that the submitted evidence suggested that the Firm’s use of that term suggested any racial bias, nor did the Firm’s conduct suggest any racial bias. Furthermore, the Tribunal found that the group interview format utilized in Mr. Moore’s second interview, although unusual and possibly irrational, was not related to any racist intention.
Failure to investigate
The Tribunal found that the Firm, in response to Mr. Moore’s allegations of discrimination, “summarily dismissed” the allegations and failed to take “any steps whatsoever” to investigate. The Tribunal acknowledged that the Tribunal did not have the same duty to investigate that it may have under common law if the complainant was an employee. However, it was found that the Firm did have a duty to take some heed of an applicant’s complaints of discrimination. The discrimination in this case resulted from the absolute refusal to acknowledge the possibility that discrimination may have occurred without any investigation. The failure to investigate Mr. Moore’s complaints of discrimination on the grounds of age and race thus was largely responsible for the Tribunal’s finding that the Firm did discriminate against Mr. Moore.
The Tribunal’s reason underlying its finding of racial discrimination was the fact that racial discrimination often occurs as a result of unconscious bias. That is, an employer with no racist motivation or intention may nonetheless say or do something that has a discriminatory effect. This idea of unconscious discrimination is key to understanding why the Firm’s refusal to take Mr. Moore’s complaints seriously constituted discrimination. Discrimination is, in this sense, seen to be systemic and cultural to the extent that an employer may engage in discrimination while being completely unaware of any discrimination taking place.
The Tribunal found that, in addition to Mr. Ferro’s failure to investigate Mr. Moore’s claims of discrimination, the former also made gratuitous and insulting comments towards the latter. These comments were found to be a display of contempt for and dismissal of the possibility that the Firm may have engaged in discrimination. The comments made by Mr. Ferro following Mr. Moore’s allegations included an assault on his professional abilities and attacks on his personal character. For example, Mr. Ferro referred to Mr. Moore as a “hustler,” accusing him of fabricating his claim in order to obtain damages in bad faith. These comments, in context of Mr. Moore’s allegations of discrimination, showed an attempt to get revenge on the part of Mr. Ferro because Mr. Moore had sought to enforce his human rights.
The first takeaway in Moore is that employers must be vigilant against the possibility of unconscious discrimination. The Tribunal recognizes that discrimination is something that occurs sometimes without any conscious intention or will. Instead, a person or organization might engage in discrimination without knowledge. This unconscious dimension of discrimination is a result of the larger cultural context within which any individual or organization is situated. This is important because, despite the best intentions or motivations, individuals or organizations can take action or correspond in such a way that such actions or correspondence have a discriminatory effect. Thus, the consequences of actions and conduct are at issue rather than the intention or motivation behind them.
The upshot of this unconscious nature of discrimination is that Ontario employers have a responsibility to be aware of the possibility of discrimination even if they believe that they have not engaged in discrimination. They must not, in other words, close off the possibility that they may have engaged in discrimination without first investigating such a possibility to rule it out.
The second takeaway from Moore is that discrimination can easily occur after an allegation of discrimination has itself been alleged. This is of particular importance in a scenario like this case, in which an employee’s case was largely decided based on events that occurred after the employee had alleged discrimination. If the employer in this case had responded to Mr. Moore’s allegations in a professional and unbiased manner, it would have been relatively easy to conduct an investigation that would have satisfied the Tribunal. The conclusion, then, would be that an employer should treat allegations of discrimination with respect and be prepared to conduct an investigation into such allegations even if those allegations are made by an applicant who is ultimately not hired.