Meeting 26: Racial Profiling and Stereotyping

Summary:

The Applicant, an African-Canadian female, was hired by Leon's Furniture Limited in Dartmouth, Nova Scotia as a customer service agent in 2004. Initially, she was promoted on several occasions and obtained the position of sales associate in 2006. She had aspirations of progressing as a manager.

In 2008 there was a change of management and GC started experiencing issues with her new supervisor, Brent Hopkins. She described that she started experiencing unusually harsh disciplinary outcome as a result of her failure to attend work on January 6, 2008. According to the complainant, believing that it would not be busy in the store because of inclement weather and wanting to stay home for her daughter's birthday, she had called into the store the morning of this shift and left a message for Hopkins. She stated that she was planning to stay home but would come in if she was really needed, to which he said "fine." After receiving the suspension, which she considered overly harsh, she complained to Tammy Bishop, the store manager, who supported Hopkins' decision. She had no prior disciplinary history until that moment.

The complainant claimed she was subject to differential treatment again in March 2008, when her day off was taken away, and she was issued a written warning for leaving the store during work hours without swiping out or obtaining permission from management to leave, in contravention of store policy. The complainant alleged that it was common practice that associates could take a break and leave the store to take care of personal errands without swiping out as long as the floor was covered and that other employees had done so without penalty. She also believes that she was disciplined twice for the same conduct, first by Kim Hennigar in making her work the Saturday shift after granting her the day off, and then by Brent Hopkins and Tammy Bishop following the sales meeting, when she was presented with a written warning.

After these incidents, GC was ridiculed in public by other employees.

In another occasion, Hopkins allocated her sales commissions to another employee

because Hopkins believed that the complainant had told a customer that furniture would be available for delivery when it was not, resulting in a customer complaint. Another time, the complainant was accused by another sales associate of taking away his customer, so Hopkins decided to take her sales commission away again.

In the summer of 2007, when she had been a Sales Associate for almost a year, the Complainant applied to Ms. Bishop to be considered for the position of Warehouse Manager. The Complainant states that she was aware at the time that the position involved working weekends, nights and a decrease in pay. She says that she was fine with that. Her evidence was that she was already required to work evenings and weekends as a Sales Associate.

139. The Complainant gave Ms. Bishop a letter expressing interest in the position and then followed up with her. She testified that Ms. Bishop shut her down, telling her that, “With your personality, you belong on the floor.”

In addition to differential treatment, the complainant alleged that Bishop's husband had repeatedly called her "Contessa”, a term commonly used for slaves who were servants working in a slave master's house, during a staff Christmas party, and that, on another occasion, he greeted her by saying "what's up biotch," which she characterized as "black lingo."

GC testified that in the spring of 2008 she changed her hairstyle by putting dreadlocks in her hair. She described being at work with Mr. Hopkins and Paul Koutros, another manager. She testified that Mr. Hopkins touched her hair and commented that her “hair felt like wool.” Mr. Hopkins had also called her "Sunshine" – a term which she claimed means that "you are so black that you shine," and had called her "Condoleezza Rice" – the former U.S. Secretary of State who is also a black female – in front of customers.

In April 2008, the complainant alleged that, when she was called into Hopkins' office for her performance evaluation, he stated: "Everyone out. There's going to be a lynching." Two managers left the room, but Bishop remained and did not make any response to the comment. After this meeting, the complainant immediately called the area supervisor for the store, David MacLeod, with whom she was involved romantically, about the comment, who told her to complain to Bishop. However, as Bishop had been present at the time, the complainant did not do so, and no further action was taken. Approximately three weeks later, considering herself unable to remain at Leon's after this final comment, the complainant submitted her resignation and filed a Human rights complaint.

In response to the human rights complaint, Leon's initiated an investigation into the allegations of racial discrimination, which was conducted by MacLeod, who did not disclose his prior relationship with the complainant and had never investigated a complaint of racial discrimination. After interviewing several employees, MacLeod concluded that

racism played no part in what had occurred, but that Hopkins' conduct could be construed as unprofessional and issued him a letter of warning dated June 2008.
 

Questions to be Determined and Findings:

1. Was the Applicant discriminated against on the basis of race during his employment at Leon’s? (YES)
 

Reasoning:

1. The decision in the instant case focused not on finding an intention to discriminate, but on whether there were differential treatment and underlying biases from which an inference of discrimination could be drawn.

In the instances of harsh discipline, the Tribunal found that the Respondent provided no evidence to contradict the Complainant’s testimony that Mr. Hopkins allowed one or more sales associates to go home early that day or had indicated he might do the same thing on January 6, 2008. The Tribunal also noticed that the  Complainant had no prior disciplinary record at this time, only a few notes in her personnel file about having been spoken to about customer/sales related issues.

To justify the reasonableness of the Respondent’s decision to suspend the Complainant in addition to the written warning, the Respondent relies upon its assertion that the Complainant had a poor attendance record, performance issues and did not have any regard for her job. I cannot accept the Respondent’s characterization of Ms. Cromwell as an employee with serious attendance issues, the implication being that she was an employee with a history of regularly making a choice to not come to work. The Respondent did not provide documentary evidence to identify specific lengthy or frequent absences or the reasons for the absences. (p. 241)

Moreover, the Tribunal found that two-day suspension, without pay, for a first-time offence was harsh, that the Respondent retroactively changed its decision respecting discipline, and that there is no evidence of any similar disciplinary approach being taken against any other employee. Therefore, GC was treated differently from other employees.

The Respondent, in general, appears to be quick to assume that the Complainant was not committed to her work and has tried to portray the Complainant as a poor employee based on the documentary record of the performance reviews in 2007 during her probation period and the October 2007 review. (p. 251)

Additionally, requiring the Complainant to work on Saturday, after she had been granted the day off, was an unreasonable form of discipline in the circumstances. There is no evidence to suggest that other employees were forced to work on a day they were pre-approved by management to have off. This also constitutes differential treatment of the Complainant by the Respondent.

Regarding the discriminatory comments that GC received, the Tribunal determined that the Respondent is under an obligation to provide a healthy work environment and that includes ensuring that its employees are not subjected to discriminatory comments at work-related social functions, whether by other employees or guests.

The Complainant’s evidence was credible with respect to her having been called “Contessa” and “Biotch” by Mr. Bishop. Also, Mr. Hopkins was clearly ridiculing the texture of the Complainant’s hair, not complimenting her, when he said GC’s hair looked like wool.

Referring to the Complainant as “Biotch” in “black lingo” is an overt, albeit indirect reference, to the Complainant’s race. It was objectively offensive for the Complainant to have been addressed in this manner by a guest of the Respondent. (p. 272)

When addressing the lynching comment made by Mr. Bishop, the Tribunal emphasizes:

It is unacceptable for a manager to threaten physical violence as a joke in a workplace. In addition, this was no ordinary reference to violence, such as threatening to strike a person. The nature of the violence referred to, namely “lynching,” represents the murder of African Americans on the basis of their racial identity. Lynching is widely known to be one of the means by which white southern slave owners exerted control over African-American slaves, who were treated as sub-human and as a commodity. That the comment arose in the context of a performance review underscores the economic and power differences between the managers present and the Complainant as an employee, dependent upon them for her continued employment. (p.284)

It was also proved unlikely that the two other managers present in the room did not hear the nature of the comments. The complainant had reasons to take this comment seriously because it harmed her self-identity at its core on the basis of her race. The hurtfulness of this comment was exacerbated by her recent experiences with Mr. Hopkins and Ms. Bishop. The comment is objectively offensive and constituted direct discrimination under the Act.

Finally, the Tribunal rejected the reasonableness of the employer's post-complaint response to the allegations, determining that MacLeod was "in a clear conflict of interest" in conducting the investigation. The Tribunal also identified significant flaws in the investigation, including failing to properly assess the evidence and failing to fully understand or clearly understand what constitutes discrimination, including that intention is not a necessary prerequisite.
 

Remedy:

The Nova Scotia Board ordered Leon's to pay the complainant $8,000 in general damages for long-term injury to self-worth, as well as 18-months of lost earnings. Additionally, the Commission has requested that public interest remedies be ordered as follows:

1. Leon’s works with the Commission over a five year period to achieve employment equity for African Nova Scotian employees in Leon’s Nova Scotia stores.
2. Leon’s be trained in cultural competency in human rights as assessed and directed by the Commission; this training to include store managers, supervisors and all staff of Leon’s in Nova Scotia.
3. Leon’s works with the Commission to engage a restorative process to consider any harms to Dartmouth store employees resulting from the media surrounding this public inquiry. 2014 CanLII 16399 (NS HRC)
4. The costs of implementing these public interest remedies would be paid by Leon’s. (p.410)

Summary:

The applicant self-identifies as a Black man of Afro-Caribbean descent and a man of colour. At the time of the events, he was 45 years of age and had recently moved from the United Kingdom, after graduating and practicing law in England for seven years, including two years as a part-time associate University law lecturer.

The applicant was invited to attend an orientation interview with the firm's Professional Services Liaison ("C.P.") on January 20, 2011. At this orientation interview, the applicant was shown a presentation on how the firm operated, and the firm's structure and file management process was explained to him. The applicant states that nothing specific was asked of him at this interview about his experience or qualifications.

On January 25, 2011, the applicant was invited by C.P. to attend a "group interview" with two other candidates. C.P.'s email stated that five members of the firm would be present for the interview, including two senior lawyers. Due to a snowstorm, this group interview was delayed until February 9, 2011. The applicant attended for the group interview on February 9, 2011. The other two candidates who were participating in the group interview were a young South Asian man who was just completing his articles ("S.P".), and a young Black male who was newly called to the Bar ("J.H".). In the end, the two senior lawyers who were originally supposed to form part of this group interview did not attend. Instead, the interview was conducted by the personal respondent, Ms. Helden, together with four other firm staff members.

The applicant's own notes from the interview indicate that at some point, Ms. Helden made a statement about the firm having difficulty making lawyers "fit." The Minutes of the post-mortem indicate that a couple of the interview observers made some brief initial comments, after which each observer provided an overall letter grade for each candidate. The applicant received two As, two Bs and a C (from Ms. Helden). J.H. received one A, a B+, two Bs, and a C (from Ms. Helden). S.P. received two Bs, two Cs and one A (from Ms. Helden). The group interview observers also provided general statements about each of the candidates. The Minutes concludes with the statement, "overall we need a better pool of candidates." None of the three candidates were hired as a result of the group interview, nor were the other two candidates invited back for any further interview.

On March 16, 2011, the applicant received an email from C.P. advising him that she could not make an offer to him at this time. The applicant replied on the same day expressing his disappointment and asking for feedback. On April 11, 2011, the applicant followed up with a further email, since he hadn’t received any further comments regarding his performance. After some email exchange, Mr. Ferro stated that it was rare for the firm to hire new calls without at least articling experience in its area of practice and that those who have been hired without such experience have generally failed. Additionally, he believed the concern was that the applicant did not have the articling or other law-related experience the firm was looking for. The applicant responded later that day with a very lengthy email. He stated that the advertisement he had seen earlier that year made no mention of the need to have any articling experience in the firm's area of practice and that if it had, he likely would not have applied. In his email to Mr. Ferro, the applicant also expressed that he had been invited to two interviews (the initial orientation interview with C.P. and the group interview) when the firm's staff knew that he did not have insurance claims litigation experience or articles, and that when he had asked C.P. about this, he was told that the firm provided rigorous training.

He asked Mr. Ferro to reconsider and suggested the potential for working on a six-month trial basis. This led to the applicant receiving an email from C.P. on June 14, 2011, to invite him to an interview with Ms. Helden the next day to discuss this possibility. The position for which the applicant was interviewed on June 15, 2011, was a position with Ferro & Company.

During the June 15, 2011 interview Mrs. Helden started saying that the applicant was “a bit pushy,” and asked him about his nursing experience and his job experience in Canada. When he was finished, Ms. Helden did not ask any questions about what he had said, but she said "I thought you had more nursing experience than you had" or words to that effect. The applicant states that he did not realize that his nursing background was going to be such a big factor and that he thought something was not quite right because he had been told that this was a special position that had been carved out for him. The applicant was also asked what grade did he received in English, and Mrs. Helden stated that she asked that question to all candidates.

The applicant testified that at the June 15 interview, he was trying to convince Ms. Helden that he was someone who could adapt and learn quickly. He states that Ms. Helden replied by saying, "you're trying too hard to convince me of your qualifications; it's not about qualifications; it's about fit." The applicant testified that in this context, Ms. Helden volunteered that she had recently hired a lawyer that was better able to adapt than a more senior lawyer who required more resources. The applicant states that, in his mind, he was putting two and two together — that Ms. Helden had asked him if he had a problem adapting, and then made reference to an older lawyer who was not able to adapt while a younger lawyer was able to adapt to the firm's structure much more readily.

The Applicant was then invited to another interview on August 11, 2011, but he couldn’t attend since he was out of the country. On August 14, the Applicant replied to the invitation with an extensive email posing a lot of questions regarding the hiring process and practices. At that point, Mr. Ferro said that he would take care of it and Ms. Helden should have no further involvement.

When he did not receive any response to his email, he re-sent it to the same people on August 29, 2011, with no further or additional content. When he still did not receive any response, he sent a further email to C.P., again copied to Ms. Helden, on September 9, 2011, stating that he had not received any response to his August 14 memo, and asking whether he was still being invited for an interview. This elicited a response from C.P. on September 13, 2011, stating that an interview was not required as the positions had been filled. Following receipt of the September 13, 2011 email from C.P., the applicant wrote a further email that same day, this time sent directly to Mr. Ferro and Ms. Helden. In this email, the applicant refers to C.P.'s email as "rude, unprofessional and unfair" and alleges that he has been treated with "disdain and disrespect." Mr. Ferro replied to this email later the same day. He asked the applicant to address all concerns to him from this point on and stated that the applicant had received his decision and that there was nothing more to discuss.

The applicant replied by email dated September 15, 2011. This email represents the first occasion on which the applicant made a complaint of discrimination that potentially could trigger a duty to investigate under the Code. He expressly alleges that he has experienced discrimination because of age and/or sex by Ms. Helden and C.P., and that these same parties had also discriminated against him because of race, ancestry, place of origin, colour, ethnic origin or citizenship.

Mr. Ferro responded by email also dated September 15, 2011. In this email, Mr. Ferro alleges that the applicant "came here with an agenda and you are in the process of carrying it out." He makes reference to the applicant acting on the basis of "an unfortunate foundational belief", and refers to the applicant's allegations as "totally a fabrication of monumental proportions".
 

Questions to be Determined and Findings:

1. Was the applicant discriminated against on the grounds of race, colour, ancestry, place of origin, citizenship and ethnic origin? (YES)

2. Was the applicant discriminated against on the grounds of age? (YES)

3. Did Mr. Ferro fail to investigate a discrimination claim? (YES)

4. Did Mr. engaged in reprisal against the applicant? (YES)
 

Reasoning:

1. The applicant alleges that only the two candidates of colour were interviewed more than once to get a position at the firm. However, the Judged established that the typical hiring process at Ferro & Company involved three steps: (1) an initial orientation meeting, typically with C.P., to review the firm's process and approach; (2) an interview with senior staff, typically involving C.P. and Ms. Helden; and (3) a final interview with the lawyers' group, which at the relevant time appears typically to have been with Mr. Ferro and the other senior lawyer at the firm. The same hiring process was conducted for all applicants, including the White candidates.

The applicant would like me to infer that a group interview was conducted on February 9, 2011 because the three candidates for that group interview were all members of racialized groups, which C.P. would have known on the basis of her initial orientation meeting with each of these candidates. As I have said, there is no dispute that the three candidates involved in the February 9, 2011 group interview were all members of racialized groups. In addition, there is no doubt that C.P. would have known from her initial orientation interview with the applicant that he is Black, and would have known that the other two candidates also were members of racialized groups if she conducted orientation interviews with them. However, I find that these facts alone, in the absence of any other evidence, are insufficient to support an inference that the group interview was conducted because these three candidates were members of racialized groups. In this regard, I note that this finding is consistent with my finding that there is insufficient evidence to support that group interviews were not conducted with the two racialized candidates who were hired. (p. 145)

The applicant also the applicant referred to a form of "White interview" that he alleges was used by the respondents to interview White candidates, which he contrasts with the form of interview used for racialized candidates. However, the Judge did not find this a credible argument because the only evidence presented referred to notes and minutes from previous interviews where a white candidate was also unsuccessful. Those minutes also did not exemplify any particular form of interview being conducted depending on the race of the applicant.

Additionally, Ms. Helden acknowledged that she raised the issue of the applicant being perceived as "pushy" at the outset of the interview, based on the series of follow-up emails he had sent after being advised in March 2011 that he would not be offered a position at that time. After reading the email exchange, the judge did not accept that the comment about the applicant being "pushy" as a reflection of the angry Black male stereotype.

On the other hand, Mr. Ferro engaged in racial discrimination against the applicant in violation of his rights under s. 5(1) of the Code due to his failure to appropriately respond to the applicant's allegations of discrimination as raised in his September 15, 2011 email, and further by justifying his dismissive reaction based on racial stereotypes and biases.

2. Of the three candidates who participated in the February 9, 2011 group interview, S.P. and J.H. were both younger candidates who had recently graduated from law school. In contrast, at this time, the applicant was 45 years old.

In the post mortem, the assessor J.D. is recorded as making reference to S.P. as being "young ambitious" and as "young saw a competitive edge", both of which link positive attributes directly to S.P.'s youth. In contrast, J.D. is recorded as stating in relation to the applicant, "his (sic) is older already entrenched habits", which links a negative attribute directly to the applicant's relative older age. In addition, Ms. Helden during the post-mortem is recorded as saying in relation to S.P., "he was young saw as mentally fast an (sic) opinionated, not a negative", which once again links positive attributes to S.P.'s age and youth in contrast to the applicant. (p. 169)

Even though in some instances Ms. Helden used the term “young” to refer to an applicant’s work experience, the Judge did not accept that she was using the term in only this context.

On the basis of the evidence before me, I find that the applicant's older age was a factor considered by the assessors at the February 9, 2011 group interview, which is sufficient to find that the applicant in this respect was subjected to age discrimination with respect to employment contrary to s. 5(1) of the Code. While I appreciate that the applicant was nonetheless called back for a further interview in June 2011, I find that he experienced a detriment in relation to the consideration of his age given that, following the February 9, 2011 group interview, he was informed by the firm on March 16, 2011 that he could not be made a job offer at that time, and only was invited to a further interview following his repeated and persistent efforts. (p.175)

3. The Judge, started noting that there is no freestanding "duty to investigate" under the Code. Rather, there is Tribunal jurisprudence that has established that, in certain circumstances, it is a violation of the right to be free from discrimination where a respondent fails to take appropriate steps to respond to an allegation of discrimination.

The applicant raised legitimate concerns about being discriminated against during the hiring process, and Mr. Ferro’s response was dismissive, and he did not take any steps to address such allegations.

I appreciate that the Tribunal's case law in relation to the "duty to investigate" primarily has addressed circumstances where an applicant and a respondent are in some kind of ongoing relationship, whether as employer-employee or as service provider and service-recipient. I also appreciate that a job candidate falls into a different category, as there is no ongoing relationship between a job candidate and a prospective employer outside of the recruitment or hiring process. Having said that, in my view, I find that there is at least some obligation on a prospective employer to take some steps in response to an allegation of discrimination alleged by a job candidate, even if the measure as to what constitutes taking "appropriate steps" in response to such an allegation may not be as robust for a prospective employer as is expected of an employer in an ongoing employment relationship with an employee. (p. 187)

Moreover, the Tribunal found that it was inherently discriminatory for Mr. Ferro to fail to take any steps to address or investigate the applicant's complaint of discrimination. Mr. Ferro's actions in failing to take such a complaint seriously and to respond to such a complaint properly violate the applicant's dignity interests in a way that is additional to and independent of the underlying allegations raised in the applicant's complaint.

4. Mr. Ferro did not stop there. He further went on to make gratuitous and insulting comments about the quality of the applicant's legal abilities in his email of September 16, 2011. Beyond hurling abusive insults about the applicant's legal abilities, Mr. Ferro also attacked the applicant's character.

In his September 11, 2013 email, Mr. Ferro states: "you are hustling a settlement here and you know it". Above, I noted that the applicant was particularly affected by Mr. Ferro's reference to him as a "hustler". I agree with the applicant that the use of this term is connected to a stereotypical view of Black males. I accept the applicant's evidence that he is a professional with drive and ambition who has overcome many challenges in his career, and that it was extremely hurtful to him to be called a "hustler" and to be confronted with these personal attacks on his character. (p. 199)

Accordingly, the Tribunal established that Mr. did engage in reprisal towards the applicant.
 

Remedy:

British Columbia Human Rights Tribunal ordered $2,000 as compensation for injury to dignity, feelings and self-respect, with post-judgment interest at a rate of 3.0% per annum to run on any amount unpaid more than 30 days from the date of the decision.

Summary:

The respondent was the owner of Top Choice Tax Accounting Inc., a full-service accounting firm that had five employees. In October 2015, the respondent reached a two-year agreement with a U.S. based company, New Client Inc. (“NCI”), to participate in their Client Acquisition Program. Pete Borrelli, NCI Senior Account Executive, was responsible for providing advice to Top Choice on activities such as client recruitment, training, human resources and other operational matters.

The respondent hired the applicant on January 25, 2016, in the position of Client Service Representative (“CSR”). The CSR was responsible for conducting recruitment or marketing activities with prospective clients. The applicant began his employment with Top Choice on January 25, 2016. He signed a contract of employment on that same day outlining his roles and responsibilities, which included to make presentations to potential clients each week and attempt to secure a minimum of two new clients per week.

The applicant testified that during his recruitment interview and his first few meetings with the respondent, he told her he did not like conducting telephone cold calls, but that he was fine with attending in-person pre-set appointments and conducting in-person cold calls. The respondent’s testified that the applicant did not mention this during his interview.

The respondent trained the applicant by sharing with him her experience of what she knew of the Client Acquisition Program since Mr. Borrelli was not available to meet in person. The applicant testified that he never received a performance review. However, he spoke with the respondent regularly, often daily, and submitted weekly reports to the respondent.

The respondent testified that the applicant’s performance was very weak from the beginning. According to the respondent, the applicant would spend two to three hours a week at pre-scheduled meetings, but in his spare time would not engage in prospecting activities.

On March 4, 2016, the respondent asked for advice by email from Mr. Borelli about the applicant’s performance:

Dear Pete [Mr. Borrelli],

Thank you for sharing your thoughts. I had conversation with Steve [the applicant] about his duties to prospect. He said he hates cold calls. For the those reasons:

1. For phone cold call: he can not be on the phone for long as his ears hurt. He told me that the first a couple of days of video wearing headsets still ringing buzz sounds in his head till now.

2. (This is what I assumed) for in-person cold call, he is a big and tall African man. That may be a issue to many people for the stereotype.

So far, Steve has not making 2-3 appointments per week he should be getting on his own. […] (p. 22)

Mr. Borrelli replied with a couple of suggestions, and on March 5, 2016, the respondent forwarded the string of emails to the applicant.

The applicant testified that the March 4, 2016 email impacted him psychologically. He continued to attend work but said he lost sleep over the email, although he did not seek medical attention nor did he mention anything to anyone in the workplace.

The applicant was not performing to expected standards, which resulted in significant financial hardship for the respondent’s business. The applicant was not meeting the sales quota of recruiting two new clients per week and was bringing in less income than his remuneration. On April 17 the respondent terminated the applicant’s employment while he was still on probation.

On April 21, 2016, the applicant sent the following email to the respondent:

In an email you sent to Peter Borrelli on March 4, 2016, you wrote, amongst other things as follows: “(That is what I assumed:) for in person cold call, he is a big and tall African man. That may be an issue to many people for the stereotype.” The big and tall African man you were referring to is myself.

I have a couple of questions for you.

1. What is the stereotype you were referring to?

2. What issue or issues would people have with me being a big and tall African man? Are you suggesting that I am scary or that “people” would not deal with me simply because I am a “big and tall African man”?

This statement alone and on it’s own is racially discriminatory Beyond that, it is defamatory because you published it to Peter Borrelli - a third party.

Based on the foregoing, I am putting you on notice that unless I receive a cheque from for in the sum of $20,000.00 in redress for your unwarranted racial profiling and defamation, I will not only file a petition against you with the Human Rights Commission of Ontario, but will also file a claim for further damages against you in court.

The respondent testified that she perceived the April 21, 2016 email as blackmail and did not respond.
 

Questions to be Determined and Findings:

1. Was the Applicant discriminated against on the basis of race during his employment at Top Choice? (YES)
 

Reasoning:

1. It is indisputable that the respondent looked for advice from Mr. Borrelli because she was not happy with the applicant’s performance, and that the respondent she assumed the applicant did not engage in in-person cold calling.

The applicant never told the respondent that he did not like making in-person cold calls. The respondent explained that she assumed he did not make them because he had been “racially profiled” in the past and felt uncomfortable engaging in such activities. I find that the respondent’s perception of the applicant’s work performance, as described in the March 4, 2016 email, is based in part on stereotypical assumptions about the applicant because of his race. (p. 44)

The respondent presented evidence to indicate that the applicant’s performance was consistently weak before and after the March 4, 2016 email, and explained that she knew that Mr. Borrelli had never met the applicant and she was trying to explain to him why she thought the applicant was not doing in-person cold calls.

Additionally, instead of supporting and assisting the applicant so he could improve his performance, the respondent shared her stereotypical views with Mr. Borelli and also forwarded the offensive email to the applicant. “The incident is further aggravated by the views having been made in writing in an email exchange that other employees had access to.” (p. 46)

The judge found probably that the respondent did not have the intent to discriminate against the applicant, but rather tried to find an explanation to his poor performance. However, the intent is not required to establish discrimination; rather the focus is on the impact or effect of the conduct. The Tribunal then stated:

The inference I draw from this, as well as all of the surrounding circumstances, is that the respondent’s perception of the applicant’s work performance was, in part, tainted by his race…The respondent inappropriately believed that the applicant could not perform the essential elements of his position because of his race and ultimately affected his performance. Since he was terminated because of his poor performance, I find that race was a factor in his termination. (p. 47)
 

Remedy:

The Ontario Human Rights Commission determined that the respondent shall pay $2,500.00 to the applicant in monetary compensation for injury to his dignity, feelings and self-respect.

Summary:

Mr. Shaharyar Ahmad (the "complainant") says that during his six years of employment with CF Chemicals Ltd. (the "respondent" or the "Company"), it refused to promote him or any other visible minority to any leadership or supervisory position. He alleges this was for reasons of race, colour or religious beliefs. He further alleges that on March 17, 2010, contrary to section 7 of the Alberta Human Rights Act (the Act),[1] the Company terminated his employment for reasons of race, colour and religious beliefs.

In the spring of 2004, Mr. Ahmad responded to an advertisement for a Senior Process Engineer at CF Chemicals Ltd. in Medicine Hat, Alberta. Following an interview and confirmation of his qualifications, he was offered the position, he accepted the offer and began his employment with CF Chemicals Ltd. effective May 31, 2004.

CF Chemicals Ltd. is in the fertilizer industry and operates two ammonia plants and one urea plant in Medicine Hat. At all relevant times, Mr. Russ Holowaychuk was Vice President and General Manager (VP/GM) of CF Chemicals Ltd. He was the senior executive in charge of the Medicine Hat operation and reported to a corporate Vice President of CF Industries Inc. in Deerfield, Illinois. Mr. Ahmad is a professional engineer educated in Pakistan. He has a Bachelor of Science degree in Chemical Engineering from the University of Punjab (1993) and an Executive MBA with a major in Marketing from Preston University (1997). When Mr. Ahmad joined CF Chemicals Ltd., he had approximately ten years' experience in the fertilizer industry.

Upon joining the Company, the complainant was introduced to the CF Industries Inc. Code of Corporate Conduct, because all employees were expected to become familiar with the Code and follow it.

It was the Human Resources Department's practice to periodically review the qualifications of existing employees and rank them according to their potential for advancement within the Company. This document was prepared in 2005 less than a year after Mr. Ahmad joined the Company and showed that he was ranked number two under the heading "Candidates for Future Review." According to Mr. Chris Ernst, Manager of Workforce Development, the complainant's promotional potential was limited at the time because he had not yet completed a full year with the Company and had limited exposure to the Company's operating plants. The equivalent document prepared in 2007 ranks existing staff for potential succession for three managerial positions including VP/GM. For each of these positions the complainant was ranked with the candidates who were "Considered, Not Selected." Mr. Ernst indicated that there were two reasons for this: the complainant had limited experience for some of the positions and also his most recent Performance Appraisals did not support his advancement into a managerial position at that time. In June 2006 another Process Engineer, Mr. Wayne Steinke, was promoted to Chief Process Engineer. The complainant was advised of this decision before its announcement and was told that Mr. Steinke was chosen because he had longer service with the Company and more experience at the Medicine Hat Plant.

In April 2007, Mr. Steinke was promoted again from Chief Process Engineer to Manager of the newly established Environment Safety and Technical Services Department. At that time, two other engineers were elevated to supervisory or leadership positions. However, neither the complainant nor Mr. Yussuf, another engineer who is a Muslim and a visible minority, were promoted. Mr. Ahmad considered this to be unfair and believed that both he and Mr. Yussuf were better qualified than Mr. Steinke.

Mr. Ahmad's 2008 Performance Appraisal was also conducted by Mr. Steinke. His overall rating was "Competent," and he was recommended for a salary increase. His performance was judged "Superior" in nine of thirty-nine areas of assessment and "Needs Improvement" in two. The complainant responded in writing to the 2008 Appraisal disputing the validity of his manager's criticisms. The Company did not reply to the complainant's response to the 2008 Performance Appraisal because it did not agree with the complainant's comments but chose not to debate the issue.

In late December 2008, an issue arose which led to conflict between the complainant and the Company. The Company's plants operate seven days a week, and the new Maintenance Manager proposed that Process Engineers, including Mr. Ahmad, be included in the rotation of persons "on call" in the event of trouble on weekends. Mr. Ahmad suggested it was an abuse of the law to assign weekend work to professional engineers since they are not entitled to overtime pay and claimed that the Company was unfairly assigning callout duties to some employees but exempting others based on who they liked.

In addition to the emails on this issue, there were meetings. After one meeting, the Manager of Workforce Development met with the complainant and cautioned him about the inappropriate tone of an email and his conduct in the meeting.

The 2009 Appraisal notes that there has been a further deterioration in the complainant's performance. For the first time, he received an overall performance rating of "Improvement Needed" and was not recommended for a salary increase. Once again, the complainant responded with a lengthy written rebuttal disputing every one of his Manager's critical comments. Rather than dismiss the complainant, Mr. Holowaychuk decided to have Mr. Rani work with him in an effort to change his behaviour. Over the next few months, there were coaching sessions involving the complainant and his direct supervisor, Mr. Rani.

On August 13, 2009, the complainant sent another email which was regarded by his Manager (Mr. Rani) as inappropriate and unprofessional. It included critical comments directed at another person. The complainant was informed that such comments have a negative effect on the organization and will not be tolerated. In early November 2009, there was a serious production issue at the plant, and the Company sought advice from Mr. Ahmad but considered his response unsatisfactory.

The question of whether to terminate the complainant's employment was revisited in March 2010. The Company was of the view that Mr. Ahmad was not showing the improvement that they had hoped for with respect to having initiative, following through on directions from his supervisor, and abrasiveness in his interactions with supervisors and others. The Company consulted counsel and decided to terminate Mr. Ahmad's employment without cause and provide him with a severance package.

The complainant argued that discrimination was evident from the fact that after his dismissal, between July 2010 and 2013, the Company hired several technical supervisors and managers, all white, in the positions of Plant Manager, EHS Manager and Chief Plant Engineer. Mr. Ahmad alleged that these individuals had neither experience of the respondent's operating plants or experience in the ammonia/urea industry. The complainant argued that the reason the Company gave him for promoting Mr. Steinke to the position of Chief Process Engineer (that Mr. Ahmad lacked local plant experience) was a lie because subsequent promotions were made where white people were promoted despite having less local plant experience than he had at the time of Mr. Steinke's promotion. His evidence of the qualification of the individuals who were promoted were LinkedIn profiles taken from the Internet.

Mr. Ahmad argued that the performance evaluation methods used by the Company were highly subjective and non-transparent. He alleged that they were inaccurate and biased.
 

Questions to be determined and Findings:

1. Did CF Chemicals Ltd. Terminated Ahmad’s employment because of his race, colour and religious beliefs? (NO)
 

Reasoning:

1. As in many cases of this nature, there is no direct evidence of discrimination or bias, it must be inferred from circumstantial evidence. Mr. Ahma provided some circumstantial evidence; however, one problem he had in establishing that the Company unfairly discriminated against visible minorities and Muslims is the Code of Conduct. The policy clearly prohibits discrimination and requires all employees to review it annually and sign off to confirm having reviewed it and that they have not been discriminated against and have not witnessed discrimination or harassment. Mr. Ahmad signed the Code of Conduct each year during his employment with the Company.

Similarly, his complaint that prejudice against visible minorities and Muslims created a "glass ceiling" which excluded visible minorities and Muslims from rising into leadership roles is undermined by the fact that in October 2008, the Company hired Mr. Rani, a Pakistani Muslim, to be the Company's Operations Manager. This was the second most senior position in the plant, and Mr. Rani was identified as the likely successor to the VP/GM, the most senior position in the plant.

Mr. Ahmad also alleged that his managers conspired to sabotage his chances to advance into a leadership role by unfairly criticizing his performance and ignoring or denigrating his accomplishments because of his race, colour or religious beliefs is undermined by the tone and careful attention to detail of his annual Performance Appraisals.

He received five annual Performance Appraisals prepared by three different managers. It is evident by reading the Appraisals that there was an effort to evaluate his performance fairly and present a balanced view of his contributions to the organization. His accomplishments were mentioned, his strengths were identified and he was encouraged to address areas of weakness. In my view, the Performance Appraisals recognize both his accomplishments and his efforts to respond in the areas where he had been told that improvement was needed. They reflect a genuine effort by his managers to guide and motivate him. The tone displayed by the managers in each Appraisal is inconsistent with his allegation that they conspired to sabotage his chances to advance to a leadership role. (p. 136)

The Company's opinion with respect to his promotability was consistent with the overall appraisal. Although Mr. Ahmad showed strengths in many areas, he had been advised of problems communicating with those he worked with. Mr. Ahmad's responses to his Performance Appraisals, including his criticisms of the Performance Appraisal system, included some valid insights.

Many of his suggestions were consistent with modern and progressive human resources practices but such practices are not an entitlement nor is their absence indicative of racial or religious bias. Mr. Ahmad's criticism was presented in an arrogant, confrontational and abrasive manner and were disrespectful to his Manager and the Company. It is hard to imagine that Mr. Ahmad did not appreciate that this was provocative, likely lead to a disciplinary response. (p. 162)

Additionally, Mr. Ahmad did not acknowledge responsibility for any of these criticisms and blamed his supervisors.

I am satisfied that throughout his employment and in particular over the final three years, the Company identified and communicated the areas where Mr. Ahmad needed to improve and made a genuine effort to encourage him to do so. The Company provided coaching, direction and warned him of the consequences of continued misconduct. However, Mr. Ahmad disputed the validity of the criticism and not surprisingly did not correct his behaviour. In a number of ways, his conduct became worse. He refused to acknowledge that he had done anything wrong; alleged that his managers are incompetent, ignorant and incapable of understanding his accomplishments; or were deliberately making unsubstantiated criticisms in furtherance of a conspiracy to block his progress into a leadership position. (p. 172)

Therefore, the Tribunal was satisfied that the Company's decision to terminate his employment, was not influenced by his race, colour or religious beliefs. Also, the Company's decision not to promote Mr. Ahmad was linked to his personality, conduct and how he performed his duties and interacted with his supervisors and co-workers. Although Mr. Ahmad provided examples of conduct from which it might be inferred that the Company was biased against Muslims and visible minorities, there was not enough to support such an inference. The examples provided were isolated incidents thinly spread over the years and were never raised by Mr. Ahmad at the time.
 

Result:

The complaint of direct discrimination in employment on the basis of race, colour and religious beliefs was dismissed.