66-year-old worker applied for position of HR manager at P&G
A worker’s belief that an employer’s rejection of his application was because of his advanced age and too much experience wasn’t enough to support his claim of discrimination, the Ontario Human Rights Tribunal has ruled.
The 66-year-old worker applied for the position of human resources manager with Procter & Gamble, the manufacturer of consumer hygiene and healthcare products, on Dec. 29, 2024. He submitted his resumé and application online for a job advertisement that specified that the company was looking for candidates with “one to three-plus years of human resources experience.”
The worker felt that his skills and experience met what was listed in the job advertisement. However, the day after he submitted his application, Procter and Gamble emailed him a rejection letter.
The worker believed that the company determined that he was older from the 44 years of experience in human resources that he listed on his resumé, starting in junior roles and moving his way up. Given that he was well-qualified for the position and he thought he would be a good fit, he felt that the only reason he wasn’t given an opportunity to advance to the next stage of the hiring process was his age.
The worker filed a human rights application alleging discrimination with respect to employment because of age, contrary to the Ontario Human Rights Code. He argued that he had applied to more than 150 job postings – all of which he met the minimum qualifications - and had only three interviews. He felt the explanation for this was age discrimination, and Procter and Gamble likely rejected him because it viewed him as overqualified, which he equated with age discrimination. He acknowledged that he didn’t know how Procter and Gamble’s hiring process was conducted.
Age discrimination can be subtle: tribunal
The tribunal noted that age discrimination can be subtle and may require only circumstantial evidence, but it could find no evidence in the worker’s application that could support his assertion that he was discriminated against on the basis of age. The job advertisement clearly sought a candidate early in their career, rather than an experienced executive, the tribunal said.
“If there’s no documentation or the employer doesn't have any real way to justify why they hired a younger worker, and it came out that it hadn’t considered, for example, objective standards like the person's skill set or their education and an older applicant was excluded, in certain circumstances the tribunal may find that that could be a form of age discrimination,” says David Whitten, a founding partner at Whitten and Lublin LLP in Toronto. “But beyond that, I wouldn't read much into [the tribunal’s comment] that evidence can be circumstantial - you're still going to need more than just pure speculation to support an application, and that's why employers are best to have standards and internal dialogue where they can justify that the hiring decision was completely unrelated to somebody's age, disability, or any other of the protected grounds.”
The tribunal also found that, while the worker’s experience was a product of the time he had spent in the HR profession, it didn’t mean that Procter and Gamble denied him the job opportunity because of his age rather than the fact that he had “considerably greater experience than the role demanded.” The same result could have occurred for a 35-year-old job applicant with 10 years of experience in human resources, said the tribunal.
The Tribunal stated that an applicant must prove that they didn’t receive the job because of their age, and simply being older isn’t sufficient by itself to show a link between age and not getting a job. It referred to its decision in Di Giacomo v. Workplace Safety and Insurance Board, 2017 HRTO 405, which required specific evidence to demonstrate a link between age and the rejection.
Evidence, not speculation
The tribunal also addressed the worker’s statistical argument regarding the low number of interviews he had received from all of his job applications, saying that even if such an inference were legitimate, it couldn’t serve as the factual basis for advancing a claim of age-based discrimination against the specific employer, Procter and Gamble.
“Other than the mere fact that [the worker] applied for this role and, in his view, he had sufficient experience qualifying him for it and he didn't get it, there was no other evidence of discrimination that would support his application,” says Whitten. “There's maybe a whiff of smoke there, but certainly no spark and definitely no fire - it's simply not good enough to say, ‘I'm older and I didn't get the job, so I must then have been discriminated against.’”
The Tribunal determined that the worker provided no satisfactory explanation for his belief that Procter and Gamble’s conduct or that of its employees could be linked to a protected ground under the code. Without such an explanation or evidence that adverse treatment was related to a protected ground, the matter was outside of its jurisdiction, said the tribunal in dismissing the worker’s application.
Although the worker’s application was dismissed at an early stage, there’s a risk for employers in these circumstances due to the nature of the human rights application process in Ontario, according to Whitten.
“Even when employers are successful defending themselves, they're not reimbursed for their costs, and that’s a real problem with the process - the tribunal doesn’t currently have the power to award costs to successful parties,” he says. “And this really creates a situation where it can become legalized blackmail if they make it past the triage stage, where an employer will simply make a settlement payment because it doesn’t want to incur legal fees defending the claim all the way through a hearing with no possibility of being reimbursed for legal fees.”
Tighter requirements to proceed with human rights complaints
However, Whitten notes that the tribunal has gotten tighter in this triage process in order to relieve the backlog of cases that has built up.
“They're trying to kick as many applications as they can at this preliminary stage to free up their resources,” he says. “As recently as five years ago, it's possible that they would let it through because there's some smoke, so maybe there's some fire - but this decision confirms that smoke isn’t good enough, a worker is going to have to point to some fire, or at least some sparks, in order to have their application proceed.”
Ultimately, regardless of the merits of a discrimination complaint, the best way for an employer to protect itself in the hiring process is to have documented, objective criteria that it can use like a scorecard, says Whitten.
“That's the best way to bulletproof yourself as an employer in a hiring process against any discrimination claim,” he says. “Have a scorecard, or at least some internal documentation where there's a discussion of the objective skills that the applicant brought and why a certain applicant is favoured over another, because that's what you're going to be required to produce if a human rights application makes it through the triage stage to a hearing.”
