Discrimination in Employment
Just wondering if a person who was wrongfully fired on the basis of disability from a job (oh, say, she was a legal secretary who suffered a breakdown) and then whose name got smeared around the relatively small-town legal community as a result of her seeking redress through the Human Rights Tribunal, could she conclude that her inability (despite years of experience and glowing reference letters) to ever find work again in the field (which is normally very easy to get employed in) is the result of discrimination too? I guess I'm asking does it follow that one of the options is in play:
(a) She is being discriminated against because potential employers have heard of her disability; or
(b) She is being discriminated against because potential employers consider her litigious.
If, as I suspect, it is option (b), then I find it very odd that lawyers, whose careers are devoted to promoting clients' rights, wouldn't want a legal assistant in their firm who defended her own rights.
Lastly (and sorry about the long post), how would a person go about testing her theory? Is there an assertive way to ask a firm why she didn't even get an interview?
What I meant with option (b) above is I'm wanting to know whether discrimination on the basis of promoting disability rights (i.e. through the Human Rights Tribunal) is just another form of discrimination? And, if it is, is it possible to seek redress for this new discrimination through the Human Rights Tribunal? I realize that litigiousness is not a condition protected by law but it seems to me it's a disability right to fight back.
Also wanted to mention that when I first got canned (and, yeah, I've been talking about me) I consulted a local lawyer who said "If you do this, you'll never work in this town again." In retrospect, I'd have to say that he was right.
Francesca, I'm not a lawyer, but I don't think it's actually unlawful for an employer (even if you could prove it - even if they admitted it) to refuse to hire someone just because they are known to be "litigious". It's certainly not covered under human rights legislation as far as I know.
Once you're hired, there are all kinds of prohibitions on dismissal - for example, you can't be disciplined or fired for union activity, or for filing health and safety complaints, etc. But in the scenario you're describing, no such luck.
I reserve the right to be wrong - does one of our resident lawyers see an angle that I've missed?
Thanks, Unionist. I guess where I'm coming from is that seeking redress for my unlawful dismissal is not the same thing as "being litigious"; it's righting a wrong. If the result of asserting my rights (to keep my job in spite of my temporary disability) is that I can never work again, it seems clear to me that, effectively, I never actually had the "right" to bring my complaint before the Tribunal or, in other words, that right was essentially meaningless. Certainly, I would have been better off to follow that initial lawyer's advice and just suck it up. Live and learn.
Francesca, as it was elequently explained by a (very) senior lawyer in a front of a (very) senior immigration official - "Employers might not like my personality" - the fact that he was probably the best in his field in the world wasn't the issue - people might not want to work with him.
In a prior life one of my direct reports was more than competent but no-one in the office wanted to deal with her - she had a chip on her shoulder that resulted in my refusing to do her performance reviews without my boss present. Her reputation followed her until she finally took a government job - even there her manager said that she does good work but refuses to have it peer reviewed (a capital offense in the real world).
Sounds like you've burnt your bridges.
I tend to agree that employers can get around hiring someone who is deemed litigous. Most potential employers phone your previous employer to get an idea of whether they want to hire you or not. They may not admit that they are refusing to hire you because of your litigous past. They will just say that they found someone who was more qualified for the job, and it would be very difficult to prove discrimination.
However, there also exists a reasonable duty to accommodate on the basis of disability, and I think there is a justification to fight not getting hired, especially if you are qualified and your disability does not interfere with your ability to do your job properly.
It is no different than some companies only hiring male employees, or only white people. If demographically the workforce does not adequately match the demographics of the outside community, then that company may be put into a position where they need to explain why they are hiring the way they are.
At the same time, whistleblowers and "litigous" people find a stiff uphill battle afterwards. It is not right. It is just the way it is.
Sorry to hear of your difficulties, Fransesca. While I'm not privy to all the details, I would say that if you are sending applications and they are being rejected, I don't think you would have much recourse. There are far more job applicants than there are job openings in most fields, and prospective employers are in a position to be quite picky. There would unfortunately be no way to prove discrimination in this case.
Rightly or wrongly, I think most people prefer not to hire someone who is perceived as liltigious.
And lawyers hate them more than most....unless they're paying clients.
From the Canadian Encyclopedic Digest:
ETA: The above is employment law. Also, from the Ontario Human Rights Code, see s. 8. Regarding this section (which covers reprisal), the CED stated the following:
mark_alfred, in the situation Francesca outlined in her opening post it's going to be incredibly tough to make a complaint under any of those sections "stick".
Since she's apparently not employed by her original employer the quoted section of the Human Rights Code wouldn't seem to apply (and it doesn't sound like she got any satisfaction from her original complaint to the HRC).
As for the sections of employment law that you quote, it sounds like the gossip mill has already taken care of "spreading the word" so there is no need for the previous employer to do or say anything.
For what it's worth I am aware of companies that simply provide references that confirm "So and so was employed by us in the role of XXX for the period AAA to BBB" and will not provide any other reference. Of course that doesn't stop people at a potential employer from calling people at the original employer to ask for the down and dirty - if they try to run it thru HR they'll get the same response as the sentence I quoted. If they call elsewhere in the company they might get something else.
Or as my former General Counsel told me (in regards to someone that we'd "asked to leave") - he's a nice guy so if anyone calls just tell them you'll happily go for a beer with him. If they push about his work performance just repeat that statement.
I am quite sure this is the case and I think it's very, very unfair. Clearly, if you're discriminated against, you're better off not defending yourself. Could somebody please tell me what, then, is the point of the Human Rights Tribunal with respect to disability and employment?
Actually, part of our settlement agreement was that my previous employer provide me with a very nice (and accurate!) reference letter and they did so.
I will continue to assume that I can't even get my foot in the door because my previous employer maliciously told everybody that I had filed a claim (presumably without telling them that in fact I had a legitimate claim that they were forced to settle). Had I known then what I know now, I would have made secrecy a term of our settlement.
I'm sure you don't mean it, abnormal, but this post kind of reads like you think I was a loser employee. I was a fantastic employee!
Francesca,
It may not have been your former employer who bad mouthed you. It could have been the lawyer you hired. Its an old boy's club and they all gossip and talk amongst themselves. I would not trust any of them.
You can find someone who is very capable, ie very experienced in hiring people in say Human Resources to phone your former employer as though he/she is a potential employer considering you for employment, and you will be able to find out what kind of character reference you will be getting from your former employer. It would have to be from a fake company from another community like in Vancouver or Victoria if you live in B.C.
I also don't think by law that you have to put down your entire work history on your resume. You can move to another community and don't even mention that part of your past on your resume. Don't lie if you are asked about the void in time, but don't elaborate either. Just tell them that you would be able to supply a character reference if required. Also just say that there was a "misunderstanding".
If it gets to be really bad, then change your name. If you went to school and have educational certificates/diplomas/degrees, etc. get the name changed on those as well. If your name is bad around town, then change it, and I am not joking either. If you have your father's last name, then go by your mother's last name. If you like your last name, then you can change it back again after a few years of good employment.
Go to the Human Rights Commission and tell them your problem. They would know more about the specifics of the laws and remedies better than most of us. I would phone them and talk to them.
Go to a career counsellor. Get a very good private one and not a run of the mill one. You get what you pay for and it is an investment in yourself. Find someone who would be able to help you out with your situation and look for ways of talking your way through an interview and marketing yourself on a resume.
I would first talk to Human Rights and explain your dilema to them.
Wow, Goggles, such excellent advice. Thank you for taking the time. I will definitely have someone pretending to be a potential employer phone them and see what they say about me. As to the suggestion that it may have been my lawyer who was indiscreet, I don't think so. He was from a big firm in another town altogether.
How? By having a temporary nervous breakdown? Or by maintaining that my employer had no right to can me? I didn't burn any bridges. I was treated poorly and sought compensation. Silly me.
Unless you left something out of your earlier posts you didn't prevail in your human rights complaint but you managed to make the whole thing public.
In a small close knit professional community the gossip mill is extremely effective - everybody knows who was fired with cause, who was "asked" to resign (and generally why the "request" was made) and so forth.
What do you mean I didn't prevail? We came to a satisfactory settlement. My very experienced counsel maintained that, had we not settled, I would have won a tribunal hearing. Settlement was faster and simpler. I didn't "manage" to make the whole thing public. Your tone is very demeaning.
Again, all your examples involve employees who were at fault. Is there anything at all in this thread that would you lead you to believe that I was at fault? And I agree that the gossip mill is there. My point is, however, that it was unprofessional and improper of them to say anything to anybody. They must have known that such gossip would diminish my chances of finding new employment.
And all of this is incidental to my purpose in posting this thread which was to comment on the unfairness of being punished for seeking to assert my legal rights.
Francesca, having seen the subsequent discussion, I want to make an "exception" to my original comments.
As mark_alfred pointed out, some (maybe all) human rights codes prohibit "retaliating" against a person who has filed a complaint. Example from the federal human rights act (which wouldn't apply in your particular case):
Note that this clause only stops retaliation by the person charged in the complaint (e.g. your original employer) - not by other employers who may refuse to hire you for this very same reason.
In B.C., on the other hand, section 43 says:
This clause is not restricted to a person charged.
So, for example, if someone refuses to hire you, and says straight out: "It's because of that complaint you filed against so-and-so" - that could (arguably) be seen as violating the B.C. act - but not the federal Canadian Human Rights Act.
Likewise, the Ontario code says:
So that too could be taken to apply to third parties who "indirectly" "infringe" on your right to "institute and participate in proceedings".
In all these three jurisdictions, however, I think that if your original employer could be shown to have blabbed to other prospective employers about your complaint or settlement, in way which could be reasonably seen as diminishing your employment opportunities, I think there's an argument for discrimination on the part of the original employer.
The tough part, of course, is proving anything.
Thanks, Unionist. At this point, my only "proof" is that it's damn strange that I can't find work in this field. Sounds weak, I know, but there is a huge demand for legal secretaries and assistants, especially experienced ones.
Who is "they"? It doesn't have to be your former employer - could be anyone, inside or outside the company, that saw that you had left or who was aware of what happened - as I said, the gossip mill is very effective - people do talk (and that applies everywhere from most junior file clerk on up).
When I said "they," I was referring to my former employer. And, no, it couldn't be just "anyone" seeing that I had left and somehow then magically knowing about the legal action. From my side, the only people that knew were my lawyer and my husband and I really don't believe that either of them would have seen fit to spread the information around. Yes, people do talk but usually there has to be a nugget of information in there somewhere that they're talking about; simply leaving is not that nugget. I think it's reasonable to conclude that it's my former employer and I will be proceeding on that basis.
Would you do me a favour, abnormal? Would you ignore this thread, please? I find your posts aggressive and unhelpful. I'm not debating that the information got out there. I'm asking for help in providing ideas (as Unionist and others so helpfully did) to get a fucking job.
Sounds like your former employer did write you a good reference letter. Sounds too like you have experience and are very qualified, so why you've not even been given interviews is a mystery. Consulting your very experienced counsel would likely be the best course of action.
It is self-defeating to discuss human rights in Canada; particularly human rights tribunals, without acknowledging the essential contradiction between any understanding of universal human rights and basic class/power differential between workers and employers. Not knowledging that Canada is a capitalist society leads people to expect some sort of “fundamental justice” from the legal system, including human rights tribunals. Notwithstanding all the attractive language of equality and eliminating both direct and adverse impact discrimination the over whelming majority of the s 15 Supreme Court case law denies applicants claims. The same is true in human rights tribunals.
Moreover, it is nearly impossible to prove that someone was not hired because of discrimination; particularly in small enterprises. In the large employers it may be possible to make a claim based on the statistical distribution of their current employees but in a small firm it is nearly possible to ”prove “ why someone was not hired. If you look at the successful human rights case law you will see that most successful discrimination cases work on discriminatory layoffs or discriminatory rehires.
This entire discussion also ignores the fact that it is completely legal for an employer not to hire someone because they don't like them. if someone doesn't like me for personal reasons that doesn't make it a human rights violation; even within the limited parameters of Canadian law. if they don't hire me because of my gender, age, religion, colour, sexual orientation, national origin or disability that would be discrimination. However I can only "prove" it because they said something stupid that was overheard or in writing, or because it's a large employer and their labour forceShows dramatically skewed hiring practices.
No, I think it's more that this fact wasn't explicitly stated because it's too obvious to state. This is another example of what I objected to about abnormal's posts: the insinuation that I'm not finding work because I'm not likeable or there is something else wrong with me. The fact is that not being likeable was never a problem prior to my human rights complaint and, further, not being likeable wouldn't really explain the absence of an interview. It would be hard to accept that I was unlikeable based on my cover letter, resume, and numerous excellent reference letters, all of which are presented before I am rejected prior to the interview stage.
Yes it probably does, if what they don't like about me is that I filed a human rights complaint in response to a wrongful dismissal based on discrimination.
Given the demand for employees in this field, together with my qualifications, it is hard to draw any other conclusion.
Thanks for the put down, though; it was most edifying.
Yeah, we're self-defeating. I totally forgot we're living under capitalism, where it's pointless to fight for human rights. Appreciate the insight.
It's amazing that we wasted our time even starting the discussion. Thanks again for telling us what our entire discussion has ignored.
By the way, when Francesca asks for advice and assistance in the disability forum, it's always advisable to put up or shut up.
Thanks for the support, Unionist.
I deeply regret starting this thread and am feeling quite blue about some of the responses.
I don't think my skills are the issue.
How about just being treated fairly? Would that offend you?