Emily Carasco did what everyone does when they want a job - she fought for it. When she didn’t get it, she asked the Ontario Human Rights Tribunal to give it to her anyway.
Carasco applied for the position of Dean of the Faculty of Law at the University of Windsor. She was one of two people short-listed for the position. During the final stages of the interview process a colleague accused Carasco of plagiarizing part of a textbook.
When Carasco didn’t get the position, she filed an application with the Ontario Human Rights Tribunal alleging that the interview process was racist and sexist, and that her colleague had intentionally “sabotaged” her application. She asked the tribunal to give her the position of Dean of Law for five years, as well as monetary damages.
Carasco also asked the tribunal to prevent the university from appointing a new dean until her application could be decided. Her rationale was that the position of dean is for a five-year term. If the university appointed a new dean now, the tribunal would not be able to appoint her as dean if her case was successful.
Although an extraordinary remedy, in general, human rights tribunals have the power to appoint people to positions, even if they have already been filled. The tribunal also has the ability to make an order directing any party to do anything to promote compliance with human rights legislation. However, this would be the first time such a high level job was imposed by the tribunal.
While the tribunal refused to grant Carasco’s interim request to stop the search process and prevent the university from appointing a dean, it confirmed that it has the ability to unilaterally appoint Carasco as dean in the future, should it decide to do so.
This case serves as a warning to employers to ensure their hiring processes are free of discrimination, since at least one tribunal has ruled it can give an otherwise unsuccessful applicant what they wanted in the first place - the position they applied for.
Daniel A. Lublin is an employment lawyer Whitten & Lublin LLP. He can be contacted at firstname.lastname@example.org.