Case In Point
Ontario’s Human Rights Tribunal Dismisses Discrimination Claim Against Union’s Women-Only Job Posting Under Special Program Provisions in the Code
Date: May 20, 2025
Employers seeking to initiate equitable hiring strategies may wonder whether such programs are “legal”, given the current political climate in the United States. A recent decision of the Human Rights Tribunal of Ontario contains important reminders.
Horne v. Public Service Alliance of Canada concerned a challenge to a union’s practice of designating certain positions for women candidates. The Tribunal found that restricting candidates to qualified women was permissible when done as part of a documented special program addressing systemic disadvantage.
Background
The dispute centered on a July 2019 Public Service Alliance of Canada (PSAC) job posting for a Grievance and Adjudication Officer position that specified “the successful candidate for this appointment will be a qualified woman.” This designation stemmed from PSAC’s Workforce and Availability Analysis and Employment Equity Plan. The applicant, Patrick Horne, an Alberta-licensed lawyer, submitted a complete application despite the restriction but was neither interviewed nor hired.
Beyond challenging the women-only designation, Horne also alleged that PSAC’s Self-Identification Questionnaire constituted discrimination based on multiple protected grounds including ancestry, colour, disability, ethnic origin, gender expression, gender identity, race, sex, and sexual orientation under the Ontario Human Rights Code (Code). The questionnaire had asked candidates about various Code-protected characteristics.
PSAC defended its hiring practice by demonstrating a rigorous equity assessment process. The union presented evidence showing their Joint Employment Equity Committee had analyzed federal census data, labour market availability statistics, and internal workforce composition before recommending the equity designation. This systematic approach proved crucial to the Tribunal’s analysis.
Tribunal’s Analysis
Vice-chair Karen Dawson’s decision emphasized that discrimination claims must be proven on a balance of probabilities, with applicants required to show their protected characteristic was a factor in the respondent’s actions. The Tribunal found it “cannot be disputed” that women remain underrepresented in professional and management roles in Ontario, supporting PSAC’s position that the equity designation addressed documented systemic disadvantage.
The decision affirmed that Section 14 of the Code provides complete protection for special programs when challenged by individuals outside the program’s intended beneficiaries. The Tribunal found PSAC’s Employment Equity Plan met the criteria for such protection, being clearly designed to address historical disadvantage and workplace underrepresentation.
Regarding the Self-Identification Questionnaire, the Tribunal dismissed this aspect of the complaint after evidence showed completion was entirely voluntary. Since candidates were not required to disclose protected characteristics to apply, the questionnaire did not constitute discrimination under the Code.
Key Takeaways for Employers
The decision provides important guidance for organizations implementing employment equity initiatives. While each program will be assessed on its own merits, such programs should:
- be based on documented workforce analysis and representation gaps
- follow formal assessment processes
- form part of a broader equity strategy
- keep any collection of demographic information voluntary
- address demonstrated systemic disadvantage
For more information about this decision or for assistance with reviewing your organization’s equitable hiring initiatives for compliance with the Code, please contact Njeri Damali Sojourner-Campbell or your regular Hicks Morley lawyer.
The article in this client update provides general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Hicks Morley Hamilton Stewart Storie LLP and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Hicks Morley Hamilton Stewart Storie LLP. ©
