Is it legal for companies to post job ads stating that they prefer male job applicants? At least one Toronto-based coffee distribution company, Saint Jimmy, thinks so. It recently posted a job ad which said that candidates “would need to be able to lift 22-25 lbs minimum, so men are preferred for this position.” Unsurprisingly, plenty of readers thought it was illegal gender discrimination to state a preference for male job applicants.
The company has since taken down the post and apologized, but the apology itself raises questions. The apology asserts that since the job ad stated a gender preference rather than a requirement, it wasn’t illegal. It also blamed unnamed female employees for requesting a strong co-worker to do heavy lifting and for writing the ad.
On top of this, the Globe and Mail reports that a labour and employment lawyer was able to find multiple potentially discriminatory online job ads posted by the same company. These ads included age and height preferences. The employer claimed that the height preference related to ability to wear their mascot uniform but provided no comment on the age restriction.
IS IT LEGAL TO STATE A PREFERENCE FOR MALE JOB APPLICANTS?
In Ontario, the Human Rights Code makes it illegal for an employer to discriminate based on sex. The Code expressly prohibits discriminatory job ads and application processes. That includes stating qualifications that are directly or indirectly discriminatory. Similar laws exist other Canadian provinces and federally. As I explained in a previous blog post, there are some exceptions to this rule (for example, affirmative action is legal in Ontario and gender preference may be legal if there is a good reason for it, such as the privacy rights of patients receiving personal care)
Cases of employers expressly stating that they discriminate in hiring or prefer male job applicants/employees are rare. They do still happen from time to time, though. Unfortunately for job applicants, the penalties employers face don’t necessarily line up with how out-dated these discriminatory practices seem.
For example, in a 2015 case the Human Rights Tribunal agreed that an employer had violated the law by seeking only female applicants, but ordered no damages to be paid to the male complainant due in part to the adjudicator’s suspicion that he didn’t really want the job. Since the employer provided human rights training and created a human rights policy on its own, the Tribunal didn’t order any changes in the workplace.
In another case, the Human Rights Tribunal awarded a female janitor just $5,000 in general damages after her employer fired her in order to hire a male employee. The Tribunal also ordered the employer to post notices about employees’ human rights, hire a consultant to develop an anti-discrimination policy, and train employees on their human rights obligations.
However, as Saint Jimmy’s is probably learning, the public criticism may be more significant than the formal legal consequences.
WHAT IF MALE APPLICANTS REALLY ARE STRONGER?
Most employers no longer expressly state a preference for male workers. However, many do still refuse to hire women in positions requiring manual labour. Others exaggerate the physical requirements of a job in order to discourage women from applying in the first place. The same applies for workers with disabilities.
Whenever these types of cases come up, people inevitably point out that women are less likely to be able to meet the employer’s needs since they aren’t as physically strong as men. Often they also claim that women are less interested in manual labour. To this I say: Come to my gym some morning to test your hypothesis that women can’t lift 25 lbs. Heck, go to any playground to see mothers and female caregivers lifting children with ease! Women are doing manual labour in your community every day.
Thanks to challenges to discriminatory physical criteria brought by women and disabled employees in the past, Canadian law gives employers and employees guidance about how to approach the question of whether a job candidate is fit enough for a physical job. Unsurprisingly, the law does not permit employers to assume that a woman is not fit enough to do the work. Instead, if a job applicant claims that an employer’s criteria unfairly discriminate, at the most basic level the law asks:
- Is there a rational connection between the requirement and the job to be done?
- Is the requirement based on an honest and good faith belief that it is needed for a legitimate work-related purpose?
- Is the requirement reasonably necessary in order to perform that legitimate work-related purpose? Can the employer show that it would impose an undue hardship to accommodate those employees who cannot meet the requirement?
In short, if you can do the job, you can do the job. This approach has opened up many traditionally male jobs to more women, including positions as firefighters and as soldiers.
CASES AND RESOURCES
- Wedley v Northview Co-operative Homes Inc, 2008 HRTO 13 (CanLII)
- Cenanovic v 2332489 Ontario Inc, 2015 HRTO 833 (CanLII)
- British Columbia (Public Service Employee Relations Commission) v BCGSEU,1999 CanLII 652 (SCC)
- Human Rights Code, RSO 1990, c H 19
- Ontario Human Rights Commission, Human Rights at Work 2008, “Advertising”
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