For Immediate Release
December 17, 2009
Human Rights Adjudicator rules on criminal record complaint
For the first time in Manitoba, a case of discrimination based on a person's criminal record has been heard at a human rights hearing. The case revolved around the requirement that a new caretaker for a seniors housing complex in Winnipeg go through a criminal record check. The Commission accepted in this case that it was appropriate to check the criminal record of the new employee to ensure that there was no risk to tenants' safety.
It, took issue, however, with the manner in which this requirement was applied. The employer refused to give the caretaker the time he needed to complete the check and then fired him shortly after.
The employer in this case, Fort Garry Services Inc., agreed with the Commission's position that s 9(1)(a) of The Code was intended to protect against discrimination based on criminal record and that the Commission had correctly compared this case to those where courts have recognized new grounds of discrimination under the Charter. The Commission's expert witness, Professor Debra Parkes, supported the Commission's approach, testifying that people with criminal records face similar kinds of stigma, stereotype and disadvantage to other groups who receive The Code's protection.
For the purposes of deciding this complaint, Adjudicator Sim also accepted that criminal reference checks or other differential treatment based on a criminal record can be discriminatory if the employer cannot show a reasonable justification. He did not accept however, that the dismissal of Mr. Penner was discriminatory. He found that the evidence revealed that Mr. Penner's job was terminated due to his substandard work performance during his first month of employment.
In a written decision, Adjudicator Sim dismissed the human rights complaint. He did not agree, however, with the employer's claim that the complaint was frivolous. He wrote that he had no concerns about how the Commission conducted the investigation and found that it was necessary to hear the evidence in order to dispose of the complaint.
The Commission has long had a policy directing employers to refrain from using criminal record checks to discriminate against individuals, unless they can show that the criminal history could pose a threat to the employer's ability to carry out its business. Some criminal convictions may be related to the ability to perform a job while others may not. More information can be found on the Commission's website under policies and in the Pre-employment Inquiries Guidelines publication.
Adjudicators in human rights cases are appointed by the Minister of Justice and are independent of the Manitoba Human Rights Commission. It is the adjudicator who makes the ruling as to whether or not discrimination has taken place. For more information, please contact:
Manitoba Human Rights Commission