Lawyer awarded $5,000 for age discrimination (Legal View)

Candidate removed dates from resumé when applying for legal writer position
By Yamri Taddese
|Canadian HR Reporter|Last Updated: 06/18/2013

An Ontario lawyer has won $5,000 in damages against legal publisher CCH Canadian for age discrimination.

Peter Reiss, a 60-year-old former senior counsel at a bank, applied for a legal writing job at CCH in 2011. To prevent discrimination based on his age, he redacted some of the dates of his previous employment and the year of his call to the bar from his application.

Rita Mason, director of editorial for legal and business markets at the company, asked Reiss to provide the missing information, according to the recent Human Rights Tribunal of Ontario (HRTO) decision in Reiss v. CCH Canadian Ltd.

Once the company had the full information, Mason said in an email to a colleague that she found it strange Reiss would apply for a legal writing job after so many years of practice and ask for a lower-than-average salary.

While she was fine with his career change, she wished “he had been more upfront about how senior he was in practice and provided a more convincing reason in his covering letter as to why he wants to make such a big change at this time,” she said.

“I have no problem with the change, it’s just that he’s not very forthcoming about it that I find problematic,” she said in an email to Peter Schon, a human resources consultant at the company. Mason also asked Schon to put Reiss’ application “on hold.”

In response, Schon emailed Reiss and informed him his application wasn’t selected. When Reiss asked Schon if his credentials were out of date, Schon replied:

“I don’t have all the feedback on everyone yet, individually, but it is looking like they are moving toward candidates that are more junior in their experience and salary expectation.”

Inaccurate information

HRTO vice-chairman Brian Cook found the information in Schon’s reply was inaccurate since the company hired other candidates at a higher pay than Reiss’ expectations.

Reiss wasn’t considered for the position even after the two other selected candidates either quit or didn’t accept the job offer.

“For the reasons noted earlier, I find that a reasonable inference from the evidence concerning Mr. Schon’s involvement is that he personally had formed the opinion that the applicant was not a suitable candidate, based on a stereotypical view about the applicant, based in part on the applicant’s age,” wrote Cook.

“The result of this was that the applicant thought that he had been rejected and did not follow up. I find that Mr. Schon’s communications to the applicant were tainted by age discrimination and that this had an adverse effect on the applicant.”

Ability to follow up lost

Since two other candidates had already been found to be suitable for the job when Schon sent the rejection email to Reiss, the loss the lawyer suffered wasn’t the position itself but his ability to follow up on his application at a later time, found Cook.

“It does seem to me that if Mr. Schon had told the applicant that his application was on hold instead of telling him that he had been rejected, it is very likely that the applicant would have followed up with respect to the position,” he wrote.

In a statement to Law Times, Reiss said he launched the lawsuit to raise awareness about age discrimination in the workplace.

“The tribunal’s decision draws public attention to the pervasive problem of age discrimination. The decision is a partial victory for older workers, but much more remains to be accomplished,” he said.

“Employers and recruitment firms must be constantly vigilant in order to protect the rights enshrined in the human rights code. My goal was to raise awareness of the issue and I think I have succeeded.”

CCH did not respond to a request for comment on the matter.

In his decision, Cook found Reiss wasn’t entitled to compensation for monetary loss because he couldn’t establish that Mason herself was discriminatory and it was she who was the decision-maker.

Mason’s discomfort with Reiss’ application was reasonable given the redacted information, according to the tribunal. Her indication in one email that he may be overqualified for the job also wasn’t discriminatory, said Cook.

“In the case before me, I do not see the fact that Ms. Mason identified the applicant as overqualified as evidence of discrimination. The significance of the applicant’s ‘over-qualification’ was that he had worked for many years in a senior corporate law position,” he said.

“Given this, Ms. Mason was not clear why the applicant would want to instead work as a legal writer at a low salary.”

The $5,000 award is compensation for injury to dignity and feelings, but Cook admitted it’s difficult to quantify that.

“In itself, incorrect information about the status of a job application would not lead to a higher-end award. However, the applicant was clearly upset about not being considered for the job and this information came from Mr. Schon,” he said.

“It was the information from Mr. Schon that caused the applicant to file the application. If the applicant had followed up, he might well have got an interview.”

Yamri Taddese is a reporter for Law Times, a sister publication to Canadian HR Reporter. She can be reached at yamri.taddese@thomsonreuters.com or visit www.lawtimesnews.com for more information.

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