Can a Job Ad Really be Discriminatory?

Discrimination in Richmond Hill Job Ad

The Human Rights Tribunal of Ontario recently had to decide whether an online job ad which looked for “female only” employees was discriminatory or not. In its decision, the Tribunal was clear that such an ad is clearly discriminatory.

The prospective applicant, Mr. Cenanovic, applied for a job at Bourbon St. Grill restaurant in a Richmond Hill food court. He had worked as a food server previously in and outside Canada for over a decade, but never at a fast food restaurant.

On November 15, 2013, the restaurant owner posted an ad on Kijiji as follows:

(Female only)

We are looking for full and part-time server (with strong customer service skill. Must be to deal with customers in a fast, friendly and efficient manner.Please send your resume with pic and qualified candidate will be called for Interview

The ad did not give the name of the restaurant, however a picture of a meal was posted with the ad.

Mr. Cenanovic emailed the restaurant and provided his resume (but not a picture), and also followed up with the application a few days later. In a subsequent phone call, the restaurant manager said “female only” two times in the course of the conversation and then hung up the phone.

Human Rights Tribunal Decision on Job Ad

In the hearing at the Human Rights Tribunal, the manager testified his English language skills were very weak, he did not intend to hire only female servers, and that he simply copied and pasted another ad from Kijiji to create his ad. The manager also wrote the following to the Tribunal:

“It is my own experiences, sometimes the patrons especially the aged patrons like to talk to female servers. It is my observation and experience that some female servers are more attentive and easy to talk. It is undeniable that in most of companies or food industries, the servers, the front desk receptionists are female. It is not a gender discrimination at all. … I posed a job opening in Kjiji seeking a female server. I honestly wished to hire a female server to replace [a former female employee]. I honestly believed that I could post the job opinion for a female server.”

This rationale and the employer’s evidence was rejected by the Tribunal.

The Tribunal stated that the picture requested in the job ad was “not necessary to discern an applicant’s job experience and customer service skills.” But most importantly, the Tribunal found that while the employer’s language skills may be weak, he was “fluent enough to know the meaning of [the] words” in the ad and in the follow-up phone call. The Tribunal found the ad, seeking only female applicants, did violate Mr. Cenanovic’s human rights on the basis of gender.

The lesson here for employers, aside from avoiding blatant discrimination, is to keep in mind when posting a job ad for an open position that there is liability to potential claims of discrimination in a job ad – even if there an employment agreement does not exist. Employers should carefully review their job ad, job descriptions, and job qualifications so that they do not breach the Human Rights Code.

Samfiru Tumarkin LLP provides authoritative advice to both unionized and non-union employers regarding a full range of human resources issues, including placement of a job ad, job offers, and day-to-day employment issues.