It has recently been discovered that many Canadian employers have used targeted advertisement campaigns, some based on gender and some based on selected age groups. This was the finding of investigative reporting carried out by CBC recently.

To date, Facebook has implemented a policy to deny such means of advertising in the United States only.

Legal Consequences

Barring an unusual exemption from human rights application, there can be no issue that such a practice is offside provincial and federal human rights protections in Ontario. There are no tribunal or court decisions on the subject as yet, but this is strictly a time bomb waiting to explode.

The candidates for such positions will have had no direct knowledge of the inner subtleties of such campaigns until the revelation of such tactics by this reporting. No doubt future cases will be brought.

The Remedy

The traditional means of seeking human rights relief has been based on an application for employment, followed by an adverse decision based on an alleged human rights violation or a decision influenced by a human rights violation or a perceived violation. The applicant must then show that he or she, based on a balance of probabilities, would likely have been a successful candidate.

That model may be needed to be reviewed as the targeting process denies an individual knowledge of the vacancy.

One would expect that the apparent practice of targeted ads would go a long way to show a denial of an opportunity that has been “influenced” by a practice contrary to human rights rules.

This all remains conjecture pending real-life cases. The Commission, which is an advisory body distinct from the Human Rights Tribunal, should and likely will implement policies and indeed recommend amendments to the Code to ban such a practice.

Employers’ View

It is accepted to be a good practice to refuse targeted advertising campaigns based on the apparent violation of protected human rights. To do otherwise will engage considerable risk.

Employees’ Take Away

As noted, it will be difficult to assert a claim where knowledge of the questioned practice is not known. The CBC investigation may be of some assistance as it does reveal specific employers engaged in this offensive practice.

Get Advice Before You Act

If you have questions about this issue or any employment question, contact the offices of Toronto employment and labour lawyers Mallins Law. We regularly advise employees and employers on legal workplace issues. Contact us online or by phone at 647-792-0310 to schedule a consultation.