THE QUESTION
I recently received a job offer as a mortgage specialist at a bank. However, the criminal background check showed that I have an assault charge pending for domestic violence. The trial is happening in three months. The bank decided to rescind my job offer even though they’ve already sent me equipment to set up my home office.
The assault charge is irrelevant to my work as a mortgage specialist. Do I have any rights here to keep the new job?
THE FIRST ANSWER
Carly Poissant, lawyer, HHBG Lawyers – Employment Justice, Vancouver
You may have a claim for human-rights discrimination if you can prove that you fall under a “protected characteristic” and that this characteristic was a factor in the employer’s decision to rescind the offer.
Protected characteristics differ between federal and provincial/territorial legislation. Most large banks in Canada are federally regulated and fall under the Canadian Human Rights Act. Unfortunately, you can’t file a claim under the CHRA, as it only includes “a criminal conviction for which a pardon has been granted or a record suspended.”
Some financial institutions, such as some credit unions, are regulated by their province or territory and fall under the B.C. Human Rights Code. The HRC protects individuals charged with or convicted of an offence unrelated to their employment. You could be reinstated to the position, among other remedies, if your claim is successful.
The employer may successfully defend itself if the charge/conviction is related to your employment. To determine this, we consider the circumstances of the case (your age at the time of the offence and any extenuating circumstances), your employment history, the time elapsed since the charge/conviction and any rehabilitation efforts or evidence of reoffending.
Certain positions also require employees to have good character (for example, working with money, children or vulnerable people). Because the charge is pending and the position involves working with money, the employer may be able to defend against a discrimination claim.
For more information, please contact the federal/provincial human-rights office or an employment lawyer in your area.
THE SECOND ANSWER
Rahul Soni, barrister and solicitor, Soni Law Firm, Toronto
It depends. How did the bank find out about your assault charge?
Most banks will ask you to disclose whether you have been charged with any criminal offences. You are obligated to answer this question honestly. If you lied about this in the hiring process, the bank is justified in rescinding its job offer.
Also, the bank is entitled to some details about your criminal charge. This legitimate question helps the employer understand whether the nature of the charge conflicts with your job duties. For example, a fraud charge will almost certainly prevent you from working at a bank. On the other hand, your domestic-assault charge needs to be better understood. Being a mortgage specialist, you are in a client-facing role and work as a team. Depending on the seriousness of the allegations, the bank may feel you could pose a risk to its clients or staff.
Under the Canadian Human Rights Act, you may be able to argue the rescinded offer if the reason for your termination was a result of your disability, such as a mental-health condition, alcoholism or drug addiction. If your disability resulted in your criminal charge, be sure to explain this connection and provide supporting medical information to the bank so they can better understand your situation, whether you can effectively fulfill your role and their obligations to provide you with reasonable accommodations.
Have a question for our experts? Send an e-mail to NineToFive@globeandmail.com with ‘Nine to Five’ in the subject line. Emails without the correct subject line may not be answered.
Andrea Yu