Meeting 12: Canadian Experience

Hamilton, Ontario

Source: www.archdisabilitylaw.ca

Facts

ARCH Disability Law Centre has reported that the Ontario Human Rights Tribunal is now hearing a disability discrimination claim filed by a former graduate student at McMaster University.

The student, Jason Tang, was a Ph.D student in Medical Sciences with an impressive publication record (20 articles in peer-reviewed journals).  Mr Tang had completed most of his academic requirements towards completion of his degree when he suffered a brain injury. The brain injury resulted in post-concussion syndrome (PCS). The side effects of this disorder led him to seek accommodation for his upcoming comprehensive exam (pp  1-2).  He claimed that his disability prevented him from completing the exam in the traditional format, and sought an alternative format that would still allow him to demonstrate his competencies.

Eight months before writing the comprehensive exam, Tang asked the University to clarify the essential requirements for the exam so that it could explore appropriate accommodation arrangements for his disability.  It appears that he was seeking to complete the exam in an alternative format which would allow him to demonstrate his competencies.   The Associate Dean of Graduate studies informed him that he would be required to complete the exam in the same format as other students (p 3). The University “offered [Tang accommodation in the form of] extra time to complete the exam along with other forms of support for writing” (p 2). Tang submits that this accommodation was inappropriate, given the nature of his disability.  Tang eventually attempted to write the exam but was unable to complete it successfully. He was forced to leave his PhD. studies.  Tang alleges that the University’s failure to accommodate him appropriately led to his expulsion.

The ARCH Disability Law Centre published an online article about this story and states that it is an important case which highlights “some of the unique questions that arise for students with disabilities at a graduate level. Our hope is that a decision will provide some future guidance to all universities and students” (p3)

The Ontario Human Rights Commission has released a new policy which maintains that having a strict requirement for Canadian Experience is prima facie discriminatory against newcomers who are often excluded from positions that reflect their educational background and professional competencies. 

Immigrants to Canada face six barriers:

1)     Employers not recognizing foreign credentials and experience

2)     Language and communication difficulties (particularly relating to occupational jargon)

3)     Employers not helping them integrate into the workplace and not providing job-related learning opportunities

4)     Being rejected for positions because they are thought to be “overqualified”

5)     Arbitrary requirements for “Canadian experience”

6)     Outright discrimination

Requirements for Canadian Experience are now considered to be prima facie discrimination

While recognizing the importance of all six barriers, the Commission’s policy focuses on the fifth, i.e. “arbitrary requirements for “Canadian experience".  The policy underscores that this requirement can be used “as a short-cut, or a proxy, to measure a person’s competence and skills”.   Even if this is not the case, and the requirement has been adopted in good faith, the Policy states that Canadian experience is “not a reliable way to assess a person’s skills or abilities” and that, in fact, “imposing requirements of this nature may contravene the Code” (p. 11).  Employers who continue to require that their applicant have Canadian experience will be forced to establish that “Canadian experience” is bona fide occupational requirement using the Meiorin three-part test. They will therefore have to show that the requirement “

Legal Test for Bona Fide Occupational Requirements

1)     Was adopted for a purpose or goal that is rationally connected to the function being performed

2)     Was adopted in good faith, in the belief that it is needed to fulfill the purpose or goal

3)     Is reasonably necessary to accomplish its purpose or goal, because it is impossible to accommodate the claimant without undue hardship

Legal Test for Undue Hardship

To determine the possibility of accommodation to the point of undue hardship, the employer would need to consider the following questions:

1)     Did the person responsible for accommodation investigate alternative approaches that do not have a discriminatory effect?

2)     Why were viable alternatives not implemented?

3)     Can there be different standards that reflect group or individual differences and capacities?

4)     Can an organization’s legitimate objectives be met in a less discriminatory way?

5)     Is the standard designed to make sure the desired qualification is met without placing undue burden on the people it applies to?

6)     Have all the people who are obliged to assist in the search for accommodation fulfilled their role?  (12)

Responsibilities of Institutions to Remove Barriers

The policy also talks about the responsibility of organizations and institutions to ensure that barriers to participation are removed.

It states that “Organizations and Institutions have a responsibility to be aware of whether their practices, policies and programs have a negative impact or result in systemic discrimination against people or groups employed by the Code”14.   They must have an anti-discrimination program with the following components:

1)     A comprehensive anti-discrimination statement and policy

2)     Proactive, ongoing monitoring

3)     Implementation strategies

4)     Evaluation

To comply with this program, the Policy outlines a list of best practices that institutions should follow.

Best practices (pp 4-5)

Employers, representatives of employers and regulatory bodies should:

• Examine their organizations as a whole to identify potential barriers for newcomers;address any barriers through organizational change initiatives, such as by forming new organizational structures, removing old practices or policies that give rise to human rights concerns, using more objective, transparent processes, and focusing on more inclusive styles of leadership and decision-making.
• Review job requirements and descriptions, recruitment/hiring practices and accreditation criteria to make sure they do not present barriers for newcomer applicants.
• Take a flexible and individualized approach to assessing an applicant's qualifications and skills.
• Give an applicant the opportunity to prove his/her qualifications through paid internships, short contracts or positions with probationary periods.
• Provide newcomers with on-the-job training, supports and resources that will enable them to close skill gaps and acquire any skills or knowledge they may be lacking).
• Use competency-based methods to assess an applicant's skill and ability to do the job.
• Consider all relevant work experience regardless of where it was obtained.
• Frame job qualifications or criteria in terms of competencies and job-related knowledge and skills.
• Support initiatives designed to empower newcomers inside and outside of their organizations (for example, formal mentoring arrangements, internships, networking opportunities, other types of bridging programs, language training, etc...
• Monitor the diversity ratios of new recruits to make sure they reflect the diversity of competent applicants overall.
• Implement special programs,corrective measures or outreach initiatives to address inequity or disadvantage affecting newcomers
• Supply newcomers and social service agencies serving newcomers with information about workplace norms, and expectations and opportunities within the organization.
• Retain outside expertise to help eliminate barriers to newcomer applicants.
• Form partnerships with other similar institutions that can help identify additional best practices.
• Provide all staff with mandatory education and training on human rights and cultural competence.

Employers, representatives of employers and regulatory bodies should not

• Require applicants to have prior work experience in Canada to be eligible for a particular job.
• Assume that an applicant will not succeed in a particular job because he or she lacks Canadian experience.
• Discount an applicant's foreign work experience or assign it less weight than their Canadian work experience.
• Rely on subjective notions of fit when considering an applicant's ability to succeed in the workplace.
• Include a requirement for prior Canadian work experience in the job posting or ad or a requirement for qualifications that could only be obtained by working in Canada.
• Require applicants to disclose their country of origin or the location of their work experience on the job application form.
• Ask applicants questions that may directly or indirectly reveal where their work;experience was obtained.
• Ask for local references only.

Full case

Facts

After a telephone interview for a job as an electrician at MAG lighting, Davut Yildiz was asked to come to the worksite the following day where the foreman gave him a number of tasks to complete. Mr. Yildiz believed that he had been hired, whereas the company was actually evaluating him and another candidate to evaluate their competencies, their ability to take orders and their efficiency. At one point in the day, Mustafa Goren, the owner of the company, approached Mr. Yildiz and asked him where he was from . Both the complainant and the personal respondent were Turkish and spoke Turkish during the phone interview. The complainant was Kurdish and was afraid to reveal his origins to the respondent for fear he would be discriminated against as was his experience in Turkey. He lied, telling Goren that he was from Kayseri, a part of Turkey where a mix of Turkish and Kurdish persons cohabitate. This response surprised Goren who commented that it did not seem, from his appearance (according to the evidence of Yildiz) or his accent (according to the evidence of Goren) that Yidiz was from that area of Turkey. The next day Mr. Yildiz called Mr. Goren to ask when he should next report to work. Mr. Goren told him that he had not been hired. Mr Yildiz was deeply hurt and assumed that he had been discriminated against on the basis of place of origin.  As he was used to such discrimination, he was able to cope with the injury to his dignity and self-worth and continued his search for employment. He got a job several days later. 

At the hearing, Mr Goren explained that the practice of evaluating candidates at work before making a final employment decision was current in the industry and certainly at MAG Lighting.  He explained, and his foreman supported this evidence, that Mr. Yildez was not hired because he was not the best candidate for the job; the other candidate, who had less experience, worked more quickly and responded better to orders from the foreman.  As for asking Mr. Yildiz where is was from, Mr Goren had three arguments against a finding of discrimination

1. The question "where are your from?" was not made during a critical part of the hiring process
2. The question does not "directly or indirectly classify or indicate qualifications by a prohibited ground of discrimination" (para 19)
3. Even if the question does directly or indirectly classify or indicate qualifications by a prohibited ground of discrimination, it is justified, in this case, by a non-discriminatory explanation: it is within the cultural norms of Turkish persons to ask such questions of one another.

Issues

1. Was the complainant not hired because of his ethnic background?
2. Do the three arguments put forth by the respondent mitigate against a finding of discrimination?
3. Is it discriminatory to ask a person where they come from during a job interview?

 Decisions

1. No
2. No
3. Yes

Reasons

1. The Adjudicator found the testimony of the foreman to be credible. The complainant was not hired because his performance was inferior to that of the other job candidate. Ethnic origin had nothing to do with the decision. In fact, there is already a Kurdish person employed by MAG Lighting.
2. The Adjudicator determined that the question "where are you from" was asked during a critical moment of the interview, the evaluation day, the very day that determined whether or not the candidate would be chosen to work for the company. Moreover the question "Where are you from" clearly invokes the prohibited ground of "place of origin".  Finally, the cultural explanation provided by the respondent (it is normal for Turkish people to inquire about each other's place of origin) is not supported by a line of cases which hold that "for s. 23 (2) to be violated, there need not be any intention to discriminate, nor is there any requirement that the information obtained by the improper questions result in actual discrimination (Lannin v Ontario (1993( 26 CHRR D/58 (Ont Bd of Inquiry (para 55). 
3. The adjudicator noted that "In most hiring circumstances more candidates will be unsuccessful than successful in obtaining the position. those who are not hired will rarely have an opportunity to discover why it was they were unsuccessful; however, they should be able to take comfort in the fact that the law of the Province of Ontario contains protections to help ensure that hiring decisions are not made based in any way on prohibited grounds. by preventing prospective employers from asking any questions that "directly or indirectly classifies or indicates qualifications by a prohibited ground of discrimination:", regardless of the motivation for the asking of the question by the employer, all job candidates will have some degree of comfort that an employer's decision to hire was based on merit and not prejudice. (9)

Remedy

$1500 in damages to dignity and self-respect.

The complainant in this case is the deputy superintendent of programs at the Toronto jail and the respondent is a unionized employee as well as the local union president. During collective bargaining in 2008, the respondent had a blog whose goal was to communicate progress made in the bargaining process. Following a hostile meeting with the complainant, the respondent made an angry entry on the blog targeting her name, her marital status and her gender. The blog stated that the manager was hired only because she was in a sexual relationship with another employee, her husband, and that she was incompetent.

When management found out about this entry, they ordered the respondent to take down the post. He refused, and created another post indicating that management had threatened to take action against him on the grounds that he had breached the OHSC (bill 168). Eventually, as part of the collective bargaining process, the OHSC complaint was withdrawn.

The complainant was dissatisfied with the resolution of her complaint. She filed a complaint with the Tribunal which asked itself

1. Can employers discipline employees for actions they take in cyberspace?
2. Did the comments on the blog amount to harassment under Section 5 (2)?
3. Did the comments on the blog amount to harassment under Section 5 (1)?
4. Does this decision preclude arguments that blog posts in other contexts could fall under s. 5 (1)?

Relevant section

5 (1)  Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offenses, marital status, family status or disability.

5 (2)  Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent or the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offenses, marital status, family status or disability.

Issues

1. Yes
2. No
3. No
4. No

Decisions

1. “I agree with the applicant that employers can discipline employees for actions they take in cyberspace, and that the Code may apply to workplace-related postings on the internet. It is not open to serious doubt, in my view, that in 2012 postings on blogs and other electronic media may be part of or an extension of the workplace and that the Code may apply to then. (25)
2. “However, I agree with the respondents that in the circumstances of this case, the blog comments themselves were not harassment “in the workplace” under s. 5(2). They were made on a blog identified with the union that, although open to the public, was directed at communication between union members and their leadership. There is no evidence that Mr. Dvorak made the postings while at work for the employer. There may be circumstances in which postings in cyberspace are sufficiently connected that they are “in the workplace” However, even giving them a road interpretation, the words of s. 56 (2) cannot apply to this blog, given the context. “ (26)
3. “Considering all these circumstances, I conclude that Mr. Dvorak did not discriminate against the applicant with respect to employment. His postings were made on issues of union-management concern, and while they relied upon sexist language, they were not gratuitous attacks unrelated to union business. There were no Code-based reverberations in the workplace and the applicants’ principal concern was about the bringing of her personal life into the workplace. The applicant, as a manager, is a person with relative power in the workplace relationship with employees. Most important, union comments on workplace issues are constitutionally protected expression of opinion and exercise of freedom of association, and close to the core of those rights. Taking all this into account, I find that the respondents did not discriminate against the applicant with respect to employment.”
4. Of course, this conclusion does not mean that I have found that the blog posts in question were acceptable, nor does it negate the hurt they caused Ms. Taylor-Baptiste. On the contrary, the wording of these posts was inappropriate and, in my view, harmful to good labour relations.   (41) I also emphasize that this decision is not intended to preclude arguments that blog posts in other contexts could fall under s. 5 (1), or that expressions of union opinion could constitute discrimination in other circumstances. Most significant to my decision in this case are that the postings were tied to communication to the membership on issues of labour-management relations and the absence of Code-related effects in the workplace.  (42)
5. Factors to consider:
   1. the seriousness of the conduct
      1.                                                                i.      While there was only one blog and one response to that blog, the open access to the comments for one month increase the seriousness of the conduct (36)
6. their significance
   1.                                                                i.      there were sexist comments that were derogatory and demeaning but there were also comments about marital status, incompetence and nepotism that did not amount to a violation of the code.
7. their effect on the workplace
   1.                                                                i.      People at work commented to her about reading about her in the blog and she sensed that people were looking at her knowingly, as a result of reading the blog. The tribunal said, however, that managers should be expected to be at the receiving end of negative critiques by the union.  This lowered the impact of the effect of the sexist language in the workplace.
8. the role of the person making them  
   1.                                                                i.      the role of the respondent in the restoration process of a workplace poisoned by racism makes his conduct even more serious (35)
   2.                                                              ii.      his role as union president on a union blog talking about bona fide concerns (nepotism, incompetence) decreases the seriousness of the conduct
9. the effect on the applicant
   1.                                                                i.      Her main concern was how her personal life had been dragged into the workplace, not with the sexist comments (38).
10. the reaction of the respondent to any concerns raised
    1.                                                                i.      the reaction of the respondent was to “belittle the concerns, attacking management, and suggesting that his actions were justified because of alleged mistreatment of the union and its membership by the employer” (35) He failed to consider or address at that time the ways in which his posts could violate the Code or hurt individuals” (35)
11. the balancing of the rights (the right to freedom from discrimination and the right to free expression)
12. the frequency of events  - one blog, one response. Accessible to the public for a month

 After reviewing these factors in regards to this case, the tribunal found that the blog comments amounted to discrimination.

Comments which did not amount to discrimination:

1)     The simple mention of the applicant’s marital status was not in and of itself discrimination:  “It would clearly not have been a violation  of the Code for Mr. Dvorak, without using language that is humiliating and denigrating, to mention the applicant’s relationship with Mr. Gray in the context of raising concerns about nepotism, or to post a comment identifying her ex-spouse, who shares her last name” (31)

2)     The comments about the applicant’s incompetency or failure to perform well were not, in and of themselves, discrimination: “it was not a violation of the Code for Mr. Dvorak to suggest, whether fairly or not, that Ms. Taylor-Baptiste had not handled this situation well, or to make comments about her competence as a manager. It also would not be a violation of the Code merely to contrast her competence or dedication to union principles with those of other managers”

Comments which did amount to discrimination

3)     “What is of concern about the comments is the use of sexist language to convey the point about nepotism. Mr Dvorak drew upon frequently used sexist stereotypes about women in positions of power “sleeping their way to the top” through suggesting that her qualification for the job was “intimate knowledge of another deputy. This was not merely a comment about nepotism, but about the sexual relationship between her and her spouse, suggesting that she had obtained her position through sex.  Similarly, the comment, “if you don’t know the answers to something this simple Ms. Baptists maybe your should call your boyfriend over at his office” draws upon the stereotype that women get ahead through their relationships with more competent “boyfriends”” (33)

4)     The posting of the comment from the anonymous poster that Mr. Taylor-Baptiste was besmirching the good union name of her former spouse also raises issues of sexism. It may be read as suggesting that, because she married and took the name of Mr. Taylor-Baptiste, she is expected to adopt his values, including those of support for trade unionism, or disassociate herself from them by changing her name. This issue and suggestion targets her as a w2oman because it was traditionally women who were expected to change their names upon marriage. This is an issue of gender and it singles her out as a woman. (34).