Avoiding Allegations of Discriminatory Hiring: How One Employer Defended Itself

Allegations of discrimination can arise at any point of the employment relationship. Hiring decisions and promotions draw particular scrutiny as there is always a degree of subjectivity and bias and the employer’s reasoning is often unknown to candidates. Unsuccessful applicants may draw their own conclusions from inferences and speculation, such as their own personal experiences with discrimination and bias or the characteristics of the successful candidate. But proving those allegations can be difficult given multiple factors go into any hiring decision.

In the recent case of Kalyn v. Vancouver Island Health Authority, the complainant was a long-tenured female employee who applied internally for the position of Manager of Protection Services. When the position was given to a younger, less experienced male candidate, the complainant alleged that the employer had discriminated against her based on her age and sex, as she felt that she was more qualified for the position. It is notable that there had never been a female Manager of Protection Services, and it is a historically male dominated department.

The Tribunal dismissed the complaint, finding that the employer had established that its decision was non-discriminatory. During the hearing, the employer explained and provided evidence that the successful applicant performed better during the interview and that the decision to award the position was based on the interview panel’s assessment of their answers. The hiring manager for the position, who was also female and new to the department, explained that the panel preferred the successful candidate because he provided substantive answers about his vision for the department’s future. In particular, the successful candidate had addressed aligning the department with the Ministry’s high-level strategies, including the integration of the department within the Provincial Health Service Authority, an important issue for the department, whereas the complainant had no such plans. The complainant’s omission was significant and enough for the panel to justify selecting the other candidate.

The key to the employer’s defense was its hiring procedure and the efforts it made to document its decision. These included:

• Having a diverse panel of interviewers, including an employee from the Human Resource department
• Using standardized and structured interview questions
• Taking notes of the candidates’ answers
• Having a well-documented business reason for the hiring decision that was more than simply “fit”

These processes rebutted the allegation of bias in the decision-making process and allowed the employer to provide sufficient evidence to prove that its decision was non-discriminatory. At the end of the day, even if an employer does everything right, an employee may still believe that they were discriminated and bring a complaint. However, as the case was here, an employer can successfully defend itself if it has a careful hiring procedure and thorough documentation.

If you want more information on this topic, you can contact us at:

Geoffrey Howard:          ghoward@howardlaw.ca

604 424-9686

Sebastian Chern:            schern@howardlaw.ca

604 424-9688