In Horne v. Public Service Alliance of Canada, 2024 HR 1788, the Human Rights Tribunal of Ontario (HRTO) dismissed an application alleging that a job posting stating the successful candidate would be a “qualified woman” constituted discrimination in employment contrary to Ontario’s Human Rights Code (HRC). The HRTO agreed with the employer that its Employment Equity Plan (Plan) was a “special program” within the meaning of s. 14 of the HRC, which provides that the implementation of a special program “designed to relieve hardship or economic disadvantage or to assist disadvantaged persons or groups to achieve or attempt to achieve equal opportunity” does not constitute discrimination. The HRTO found the Plan was “designed to alleviate the historic and continuing under-representation of women in the workforce and the conditions of disadvantage in employment experienced by women,” and other specified equity-seeking groups.

Background

The Public Service Alliance of Canada (PSAC) posted a job for a Grievance and Adjudication Officer (Officer), which stated the successful candidate would be a “qualified woman.” Before posting the job, and as it does whenever a position becomes vacant, PSAC conducted an equity assessment pursuant to its Plan, to identify gaps in workplace representation. The Plan and PSAC’s Gender Equity Task Force Report repeatedly noted that women were historically under-represented in the workforce, this underrepresentation was continuing, and women experienced disadvantage in employment. After this assessment was conducted, PSAC’s Joint Employment Equity Committee recommended the Officer position be designated for a qualified woman candidate. A man applied for the position and was asked to complete a Self-Identification Questionnaire (Questionnaire), which asked questions about certain HRC-protected characteristics, such as race, sexual orientation and disability. When the applicant was not interviewed or hired he alleged discrimination in employment.

Male Applicant’s Argument

The applicant made the following arguments:

• Limiting the successful candidate to a “qualified woman” constituted discrimination based on sex, contrary to the HRC; and
• The Questionnaire constituted discrimination based on ancestry, colour, disability, ethnic origin, gender expression, gender identity, race, sex and sexual orientation.

The applicant also stated, "nothing about the position justified hiring women only and that gender was irrelevant."

Decision

Limitation of Successful Candidate to a “Qualified Woman”

The HRTO agreed with PSAC that the  applicant had not established on a balance of probabilities that PSAC discriminated against him based on sex within the meaning of the HRC because the Plan is a “special program” within the meaning of s. 14 of the HRC. Section 14 of the HRC provides:

Special programs

14 (1) A right under Part I is not infringed by the implementation of a special program designed to relieve hardship or economic disadvantage or to assist disadvantaged persons or groups to achieve or attempt to achieve equal opportunity or that is likely to contribute to the elimination of the infringement of rights under Part I.

In finding that the Plan was a “special program” under s. 14 of the HRC, the HRTO emphasized “the equity designation was recommended based on an equity assessment conducted in accordance with the Plan.” The HRTO stressed further:

It cannot be disputed that in Ontario women have been and continue to be underrepresented and disadvantaged in the workforce as compared to men, especially in professional and management roles such as the one at issue in this Application. The Plan is clearly designed to alleviate the historic and continuing under-representation of women in the workforce and the conditions of disadvantage in employment experienced by women and other specified equity-seeking groups.

Self-Identification Questionnaire in Job Application

The HRTO found that because completion of the Questionnaire was voluntary, the applicant was not required to disclose information about his protected characteristics to apply for the Officer position. Accordingly, he failed to prove on a balance of probabilities that the Questionnaire constituted discrimination under the HRC.

Bottom Line for Employers

Public Service Alliance of Canada is a reminder of the utility of “special programs” under s. 14 of the HRC, which may enable employers to defend against actions that might otherwise constitute discrimination in employment, provided they are designed to relieve historic and continuing discrimination, hardship, and economic disadvantage in employment, or to assist disadvantaged persons or groups to achieve equal opportunity. Employers that plan to implement a “special program” are encouraged to seek the advice and counsel of experienced employment lawyers to ensure they are meeting all statutory requirements and taking any other appropriate steps.