Employer must be careful of discrimination risk
Question: Can an employer refuse to consider a former employee for employment even if there is nothing negative on his employment record or is that a form of discrimination?
Answer: Provided that the refusal to rehire is not based on a prohibited ground of discrimination under the relevant human rights legislation — age, actual or perceived disability, gender, religion, race or sexual orientation — there is nothing to prevent an employer from declining an employment application from a former employee.
However, in the absence of a well-known and routinely applied policy of refusing to consider former employees for rehire, there is always a risk that a refusal to rehire will appear to have a discriminatory basis if the employee falls into one or more of the protected classes.
In such a case, the employee would have little difficulty in establishing a prima facie case of discrimination on the protected ground, thus putting the employer on the defensive in any discrimination complaint. Without objective grounds for the refusal to hire, it would be difficult to meet the onus of proving a non-discriminatory reason.
