'The owner made a snap decision based on assumptions about disability'
“Employers should never make assumptions about an individual's ability to perform a job based on a disability - hiring decisions must be based on objective assessments and not stereotypes.”
So says Brooke Finkelstein, an employment lawyer and investigator at West Coast Workplace Law in Richmond, BC, after the British Columbia Human Rights Tribunal ruled that an employer and its owner discriminated against a deaf job applicant when they didn’t go through with a scheduled job interview.
Pure Luxe was a beauty salon in Vancouver. In early 2020, the salon advertised for a certified laser technician position, which involved using a laser as part of aesthetic treatment to improve the appearance of customers’ skin.
The worker, who is deaf, operated her own beauty clinic for a brief period of time, but it didn’t do well and she decided to look for a part-time job. She found that work at beauty salons was good for deaf people because they didn’t require much verbal communication with clients and technology such as text messaging helped with communication.
On Jan. 22, the owner of Pure Luxe was contacted by a vocational counsellor from a non-profit organization that was helping the worker find a job. The counsellor left a message for the owner saying that the worker was interested in the laser technician position and she was looking to develop her abilities as an esthetician. The counsellor briefly said that the worker was deaf, but it had never been an obstacle for her.
Job interview with deaf candidate
The owner offered the worker a job interview and the worker accepted one for Feb. 5. None of their communications made reference to the fact that the worker was deaf.
A sign language interpreter arrived for the interview shortly before the worker and, according to the interpreter, the owner of Pure Luxe seemed confused. The owner said she didn’t realize that the worker was deaf or that she needed an interpreter. The interpreter then went outside to wait for the worker.
When the worker arrived, she entered with the interpreter. According to both the worker and the interpreter, the owner met them and said she couldn’t hire the worker because she would be unable to communicate with clients because she was deaf. The worker tried to explain that she could communicate through texts and body language, but the owner said that would be inappropriate. The worker tried to show her resumé, but the owner said she wouldn’t consider hiring her and she hadn’t realized the worker was deaf.
Both the interpreter and the worker observed the owner’s body language as closed and cold, so they left after a few minutes. There was no further communication with Pure Luxe.
In September 2020, the worker filed a human rights complaint alleging that Pure Luxe discriminated against her when it refused to hire her due to her being deaf.
Employer denied discrimination
The owner denied refusing the interview, saying that she knew the worker was deaf from the communication with the vocational counselor, but she hadn’t realized she needed an interpreter. She wanted to know how to accommodate the worker, so she asked the interpreter “How would this work?”
According to the owner, when the worker walked in, she and the interpreter had a conversation in sign language. The worker became visibly upset and walked out, slamming the door. She didn’t have a chance to talk to the worker and denied saying she wouldn’t hire the worker because she was deaf.
Pure Luxe also argued that it didn’t hire anyone for the position anyway, as the COVID-19 pandemic arrived shortly thereafter and business remained slow until 2022.
The tribunal preferred the accounts of the interpreter and the worker, as they were consistent with each other and the former had no personal interest in the outcome of the complaint. In addition, it was likely that the owner didn’t know the worker was deaf, as it was only mentioned once in the counsellor’s initial communication and it wasn’t referenced in any of the communication between the worker and the owner, said the tribunal.
The tribunal found that the worker experienced an adverse impact in employment when the owner of Pure Luxe refused to proceed with the job interview after realizing her deafness. The worker’s disability was a factor in the refusal, constituting discrimination under the BC Human Rights Code, said the tribunal.
Disability discrimination
“The owner made a snap decision based on assumptions about disability, rather than properly assessing if the worker could do the job, and that failure to give the worker a chance to show she was qualified for the position was central to the finding of discrimination,” says Finkelstein.
Although the position remained unfilled due to the pandemic, this didn’t negate the discriminatory conduct, as even if the worker wouldn’t have ultimately gotten the job, her deafness was a factor in the decision not to hire her, the tribunal said.
“The tribunal applied the legal test for discrimination from the Supreme Court of Canada's decision in [Moore v. British Columbia (Education), 2012 SCC 61], which doesn’t require a complainant to prove they would have been hired but for their disabilities, it is enough that the disability was a factor in the decision,” says Finkelstein. “In this case, once [the owner of Pure Luxe] realized that the worker was deaf, she stated that she couldn’t hire the worker because she would not be able to communicate with clients - that direct link between the worker's disability and the refusal to hire or interview her was a textbook example of discrimination under the Human Rights Code.”
The tribunal declined to award lost wages since the worker wouldn’t have been hired due to pandemic-related business slowdowns. However, the owner’s conduct was “callous and insensitive,” and the worker was vulnerable to discrimination, said the tribunal, adding that the treatment of the worker “served to reinforce the barriers and exclusions that continue to marginalize [the worker] and many other deaf people.”
The tribunal also accepted the worker’s account of emotional distress, social isolation, and long-term effects on her self-esteem and employment prospects because of the discriminatory incident.
Damages for injury to dignity
Pure Luxe was ordered to pay the worker $15,000 in damages for injury to her dignity, feelings, and self-respect.
“The nature of the discrimination was serious – [Pure Luxe’s owner] explicitly linked the worker's deafness to her perceived inability to do the job and refused, in what the tribunal described as a rash, prejudiced, callous, and insensitive manner, to even consider her qualifications, experience or proposed accommodations,” says Finkelstein. “And the tribunal recognized the worker’s particular vulnerability as a deaf person navigating the labour market that already has systemic barriers to employment - in light of the serious emotional and psychological impact to the complainant, $15,000 was consistent with the evolving case law on injury to dignity awards in BC.”
The owner of Pure Luxe should have at least allowed the interview to proceed fully and fairly without immediate judgments based on the worker’s disability, even if there were legitimate concerns, according to Finkelstein.
“The employer has a duty to explore accommodation in a fulsome way based on the individual's actual abilities and the true requirements of the role,” she says. “So a best practice would have been to listen to the worker's proposed methods of communication, ask appropriate questions, give her the opportunity to provide her experience and skills, and then consider any possible accommodations before making a decision that she wasn’t a fit - dismissing a candidate immediately upon learning of a disability without conducting the interview as if it was any other applicant is exactly the type of conduct that the Human Rights Code is intended to prevent.”
