Canadian Employment Law Today

February 24, 2021

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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©2021 Key Media Canada (HR) Ltd., a subsidiary of Key Media KEY MEDIA and the KEY MEDIA logo are trademarks of Key Media IP Limited, and used under licence by Key Media Canada (HR) Ltd. CANADIAN EMPLOYMENT LAW TODAY is a trademark of Key Media Canada (HR) Ltd. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of the publisher. The publisher is not engaged in rendering legal, accounting or other professional advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The analysis contained herein represents the opinion of the authors and should in no way be construed as being either official or unofficial policy of any governmental body. GST/HST#: 79990 3547 RC-0001 How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL Published biweekly 22 times a year Subscription rate: $299 per year CUSTOMER SERVICE President: Tim Duce Editor: Jeffrey R. Smith Email: Production Editor: Patricia Cancilla Business Development Manager: Fred Crossley Email: Phone: (416) 644-8740 x 236 NAUK Subscriptions Co-ordinator: Donnabel Reyes Email: Phone: (647) 374-4536 ext. 243 THIS INSTALMENT of You Make the Call fea- tures an unsuccessful job candidate who claimed discrimination based on a physical disability. The worker was a legally blind woman who worked several jobs that involved telephone work — emergency dispatcher, order taker for an assistive technology company, call centre agent for two pizza companies, sales representative for Ticketmaster and online registration trainer, as well as data entry. Often, she used assistive tech - nology for computer and telephone work. In April 2016, the worker applied for the po- sition of inbound centre sales representative (ISR) with Nationwide Home Services Corp., an Edmonton-based company providing car- pet and furnace cleaning. The job advertise- ment didn't require experience in customer service, sales or call centres, but the worker felt the experience she had translated well to the ISR position. Nationwide conducted a preliminary tele - phone interview and scheduled her for an in- person interview at its office on May 10. The worker arrived with her service dog and the interview proceeded. The interviewer asked the worker how she would get to work and the worker responded that she lived nearby and she had walked to the office. As a result, she said that transportation and shift work wouldn't be a problem. The worker raised the subject of assistive technology and the interviewer responded that she wasn't familiar with it and asked if it would slow the worker down. The worker thought that the question was inappropriate but answered that she could be very fast with the technology — faster than most of the other ISRs, she claimed. At the end of the interview, the interviewer said that only successful candidates would be contacted — as per company policy for recruit - ing — for a second interview and this would happen within one week. The worker felt that the interview went well, but she didn't hear back within a week. On May 18, she called Nationwide's call centre and asked to speak with the interviewer, but she wasn't available. She called again and left a message, but the call wasn't returned. She contacted the call centre a third time and was told by an ISR that the position had been filled. However, following this call, the worker no - ticed that the job was posted again online. She applied again, noting that she had acquired experience with the type of computers used by Nationwide, but on May 26 the interviewer called to say that she wasn't a fit for the posi - tion based on her previous work experience. The worker saw the ISR position advertised on two more occasions over the next month. She then filed a human rights complaint, alleging that she was asked inappropriate questions dur - ing the interview that addressed her blindness and that she was discriminated against in em- ployment on the ground of physical disability. Nationwide denied there was any discrimi- nation. It claimed that job advertisements for ISRs run continuously due to turnover and all candidates were asked about how they got to work, as reliable transportation was necessary due to the fact that the business operated six to seven days per week from early morning to late evening and public transportation was limited outside of peak hours. The company also said that the interviewer didn't mention any candi - date with a disability to anyone else and it was policy not to contact candidates it didn't deem as a fit after the first interview. The company added that the first interview was designed to get a subjective feel for the candidate's fit and the interviewer felt that the worker was negative about past employers and co-workers, which made her not a right fit for Nationwide. YOU MAKE THE CALL Was the worker discriminated against? OR Was the decision not to hire the worker non-discriminatory? IF YOU SAID there was no discrimination, you're right. The Alberta Human Rights Tri- bunal found that the question about how the worker would get to work wasn't related to her disability. The evidence showed that reli- able transportation was a legitimate concern because of the hours ISRs could work and the lack of public transportation outside of peak hours. The tribunal also found that it was the worker who raised the subject of assistive technology and the interviewer's response that she was unfamiliar with it was genuine. Either way, there was no evidence that speed was a necessity for ISRs or that assistive tech - nology was a factor in the decision not to grant a second interview. In addition, Nationwide provided a non- discriminatory reason for not considering the worker's candidacy past the first interview — the worker's attitude toward past employers and the interviewer's feelings that she wasn't a good fit. This was the standard procedure for all first interviews, as was the practice of not contacting unsuccessful candidates, said the tribunal. The tribunal added that the worker felt she was a good fit because of her work experi - ence and computer skills, but these weren't required in the job advertisement and not key considerations in the decision on whether to hire her. For more information, see: • Lang v. Nation-Wide Home Services Corp., 2020 AHRC 34 (Alta. Human Rights Trib.). Job interview leads to discrimination complaint

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