A professor who works at an American university sought employment at York University in Toronto. His wife is also an academic and works at York University in the same faculty in which the professor applied.
The professor did not get the job for which he applied and sued the University for discriminating against him with respect to employment because of marital status, family status, and association with a person identified by a protected ground. In other words, he argued that he was not offered the job because of his marriage to an employee. His family status argument was quickly disposed of as the family status ground refers to being in a parent and child relationship, and was therefore not applicable in the circumstances.
The Ontario Human Rights Code states that although there is a right to equal treatment with respect to employment without discrimination, this right is not infringed where an employer grants or withholds employment or advancement in employment to a person who is the spouse, child or parent of the employer or an employee (see section 24(1)(d)). The Human Rights Tribunal of Ontario (the “Tribunal”) noted that the Supreme Court of Canada has commented on this section, stating that it “provides a defence for employers who discriminate on the basis of the relative marital or family status in certain circumstances, i.e., where an employer has a nepotism or anti-nepotism policy.”
The professor argued that any nepotism policy or anti-nepotism policy should only be permissible where that policy forms part of the hiring criteria and is communicated to candidates. Unfortunately for him, this is not stated in the Code and the Tribunal did not agree with his interpretation.
The Tribunal decided that there was no reasonable prospect that the professor’s case would succeed and therefore his case was dismissed.
There is a lesson here for both employers and employees.
Employees seeking employment at institutions in which a spouse, child or parent is employed may wish to inquire about any nepotism or anti-nepotism policies prior to applying. Employers who have such policies may wish to make such policies available to candidates, even though this is not necessarily required, in order to avoid allegations and claims from unsuccessful candidates. And as always, it is advisable for employers to create thorough documentation about both successful and unsuccessful candidates should the need arise to defend hiring decisions.
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