A “FEELING” but NO DIRECT EVIDENCE: Establishing Discrimination with Circumstantial Evidence

Posted: September 30, 2013 in Circumstantial Evidence, Human Rights Tribunal of Ontario, Proof
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Business secret

Discrimination is rarely overt. If an employer decides to fire an employee for discriminatory reasons, it typically does not say so in termination letters or exit interviews. In fact, on the advice of legal counsel, employers typically do not provide any reason for termination at all. Increasingly however, employers are relying upon language left open to speculation. Generic statements such as “not the best fit”, “not working out”, and “under performing”, leave employees questioning the real reason for termination. Where a Code-protected ground is in play, employees who are terminated for generic reasons are often left questioning whether they have experienced discrimination. The Tribunal has cautioned employers against the use of speculative language when a Code-protected ground is in play.[i]

Sometimes employers allege “other” reasons that appear legitimate, yet the employee still believes the Code-protected ground was the real reason for termination. Because most employers do not overtly discriminate, employees often lack direct evidence to prove that they have been fired, at least in part, because of a Code-protected ground. These Employees must make their case relying upon what is called circumstantial evidence. The employee must establish, on a balance of probabilities, that a Code-protected ground was a factor in the decision to terminate employment. The Code-protected ground does not have to be the primary factor or even a significant factor, it just has to be a factor – it can be one of ten reasons for example, even where the other nine reasons are non-discriminatory.

Circumstantial Evidence: The Three-Part Test

The Tribunal has adopted a three-part test to be used in cases where Applicants try to prove discrimination on the basis of circumstantial evidence:

  1. The initial evidentiary burden rests with the applicant to establish, on a balance of probabilities, a prima facie case that she was discriminated against with respect to her employment on the basis of [a prohibited ground];
  2. Upon presentation of a prima facie case, the burden shifts to the respondent to provide a credible and rational explanation demonstrating, on a balance of probabilities, that the impugned conduct or decision did not involve a discriminatory consideration, and
  3. If the Respondent is able to rebut the prima facie case, the burden returns to the applicant to establish, again on a balance of probabilities, that the respondent’s explanation is erroneous or a pretext masking the discriminatory ground.[ii]

The three steps are analyzed to determine the key question: whether the inference of discrimination is more probable from the evidence than the actual explanations offered by the Respondent? [iii]

Step # 1: Prima Facie Case

In cases of termination, a prima facie case is established by proving the following:

  1. The Applicant was qualified for the position;
  2. The Applicant’s employment was terminated, and
  3. That an employee, no better qualified for the position, subsequently obtained the position.[iv]

In cases of hiring or promoting, a prima facie case is established by proving the following:

  1. The Applicant was qualified for the particular employment;
  2. The Applicant was not hired, and
  3. That someone no better qualified but lacking the distinguishing feature which is the gravamen of the human rights complaint subsequently obtained the position.[v]
Step # 2: Employer’s Alternative Explanation

Explanations put forth by the employer will be scrutinized. The Tribunal has refused to accept lack of performance where the employer failed to take steps to address the employee’s performance and could not provide reasonable explanation for the failure to take steps.[vi] It is reasonable to expect employers, who typically keep records and document occurrences within the workplace, to have corroborative evidence where corroborative evidence can reasonably be expected. The lack of reasonably expected corroborative evidence will likely be relied upon by the Tribunal to reject the employer’s explanation.

Step # 3: Discriminatory Reason More Probable Than Not?

Here the Tribunal assesses whether the Applicant is able to rebut the alternative explanation alleged by the Respondent. Credibility is often in issue in step three. In terms of assessing credibility, the Tribunal has stated:

…an assessment of credibility requires more than listening to the witnesses and deciding who appears to be telling the truth. The Tribunal has adopted an analysis of credibility…which required that the decision maker determine whether the evidence is in harmony with the preponderance of probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions…[F]actors that assist in making that determination include corroborative evidence from other witnesses, the extent to which witnesses may have an interest in the outcome of the case, or have a self-interest in testifying for one of the parties.[vii]


Employees who have a “feeling” that they have been discriminated against are sometimes correct. Employers who discriminate  cover their tracks and divert attention away from the discriminatory rationale behind their decision. The lack of direct evidence to prove discrimination should not deter an employee from proceeding with an Application before the Tribunal. A significant number of decisions from the Tribunal demonstrate that circumstantial evidence is often enough to establish discrimination.


[i] Dwivedi v. Brampton Public Library, 2010 HRTO 2471
[ii] Clennon v. Toronto East General Hospital, 2009 HRTO 1242 at para 69.
[iii] Wedley v. Northview Co-operative Homes Inc., 2008 HRTO 13
[iv] Clennon at para 78.
[v] Shakes v. Rex Pak Ltd. (1981), 3 C.H.R.R> D/1001 at para 8919.
[vi] Clennon at para 87.
[vii] Dwivedi at para 53.

  1. Dara Frances says:

    Reblogged this on JUST and commented:
    This article outlines the necessity and weight of circumstantial evidence in discrimination cases.

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