The Human Rights Tribunal of Ontario has dismissed an application alleging sex discrimination against the Public Service Alliance of Canada (PSAC) after it posted a job reserved for a “qualified woman,” concluding that the union’s action fell under a legally protected “special program.”
P.H., a man who is a lawyer licensed to practise law in Alberta, claimed that PSAC’s choice to restrict a Grievance and Adjudication Officer position to women constituted discriminatory treatment contrary to Ontario’s Human Rights Code. He argued that his sex was a barrier to his candidacy and that the designation of the job for a female applicant denied him an equal opportunity to compete.
P.H. also challenged a voluntary self-identification questionnaire included in the application process, contending it discriminated based on protected grounds, including sex, ancestry, colour, disability, ethnic origin, gender expression, gender identity, race, and sexual orientation.
Union argued posting was part of equity plan
The tribunal, adjudicated by Vice-chair Karen Dawson, heard from P.H. and three PSAC employees. The union did not dispute that it had designated the position for a qualified woman, but it said this approach was part of an established Employment Equity Plan designed to address historic and continuing inequities in representation.
PSAC’s evidence, which went unchallenged by P.H., included the Plan and a Gender Equity Task Force Report. Both documents outlined ongoing under-representation of women in the workforce, especially in professional and managerial roles. The respondent explained that the Plan is used whenever a job vacancy arises: the union’s Human Resources personnel analyze labour market data, compare it to the internal workforce composition, and identify specific equity gaps. When gaps are identified, a particular equity-seeking group may be designated for the position.
In testimony accepted by the adjudicator, C.M. of PSAC described how the union’s equity analysis operates: “Human Resources personnel then review this data to identify gaps for various equity-seeking groups and where gaps are identified, the respondent adds an equity designation for the position.” L.R. testified that the process involves the Joint Employment Equity Committee (JEEC), which conducts a formal equity assessment before job postings and recommends appropriate designations. Following this assessment, the JEEC recommended that the competition for the role in question be designated for a qualified woman.
Complainant applied for position
Despite this clearly stated designation, P.H. applied for the role. There was a dispute as to whether he submitted a complete application, but he produced a copy of his submission and the automated email confirmation. The tribunal accepted that he had properly applied. It was not contested that P.H. was neither interviewed nor hired.
P.H. argued that restricting the competition to a “qualified woman” was discriminatory. He stated that “women only is every bit as odious and illegal as men only, and for that matter no n****** need apply.” The tribunal’s decision does not suggest that P.H. provided any evidence disputing the validity or purpose of the Plan, nor did he challenge the data that established women’s disadvantage in employment. Instead, he asserted that the designation represented a “profound violation” of his rights and dignity.
‘Special program’
The respondent countered that the Plan constitutes a “special program” within the meaning of section 14 of the Code. Under this provision, a program “designed to relieve hardship or economic disadvantage or to assist disadvantaged persons or groups to achieve or attempt to achieve equal opportunity” is not considered discrimination. PSAC argued that hiring initiatives aimed at addressing under-representation of women are precisely the type of measure protected by this section. The adjudicator agreed.
“Section 14 of the Code provides that a right is not infringed by the implementation of a special program designed to relieve hardship or economic disadvantage,” the decision states.
The tribunal found that PSAC, in designating the job as a woman-only competition, relied on a thorough equity assessment to identify a group—women—traditionally under-represented and disadvantaged in comparable roles. By structuring its hiring to address these disparities, PSAC’s actions fell squarely under the special program exemption.
The adjudicator wrote, “It cannot be disputed that in Ontario women have been and continue to be underrepresented and disadvantaged in the workforce as compared to men, especially in professional and management roles such as the one at issue in this Application.” The Plan, deemed a special program, protected the respondent’s equity-based hiring strategy from the allegation of discrimination.
The tribunal noted that in order to prove discrimination, an applicant must show on a balance of probabilities that a protected characteristic was a factor in the respondent’s actions. Even if sex was at issue, the Code’s provision for special programs applies as a complete defence when those actions are taken to advance equity. “I find it constitutes a special program under section 14 of the Code,” the adjudicator wrote, concluding that P.H. had not established discrimination on this ground.
Self-identification questionnaire
On the secondary issue of the self-identification questionnaire, P.H. initially maintained that it was mandatory, forcing him to divulge sensitive personal characteristics. However, under cross-examination, he acknowledged that completing the questionnaire was voluntary. Since it was not obligatory to provide that information, the tribunal concluded that P.H. had not been compelled to reveal protected personal details to apply for the job. With that, the complaint of discrimination related to the questionnaire failed.
In dismissing the application, the adjudicator applied the well-established test for discrimination set out in cases such as Peel Law Association v. Pieters and Ontario (Disability Support Program) v. Tranchemontagne. The tribunal found that P.H. had not shown, on the balance of probabilities, that he was discriminated against, since the measure in question was a valid special program under the Code.
Appropriate and lawful measure
The decision underscores that employers who engage in equity-based hiring, supported by careful analysis and aligned with the Code’s provisions, can be protected against claims of discriminatory hiring practices. While the tribunal examined the applicant’s claim on the facts and the law without imposing a broad characterization on its significance, the decision reaffirms the legal framework that allows employers to address systemic inequities in their workforces. In this case, the designated woman-only competition was deemed an appropriate and lawful measure to help correct a long-standing imbalance.
In the end, P.H.’s arguments that restricting the job to women only was a fundamental infringement of his rights did not dislodge the core principle that the Code explicitly permits special programs to advance substantive equality.
With the claim not meeting the required burden of proof and the respondent demonstrating adherence to a properly constituted special program, the tribunal dismissed the application.
For more information see Horne v. Public Service Alliance of Canada, 2024 HRTO 1788 (CanLII).
