Meeting 31: Artificial Intelligence, Human Rights and Hiring Discrimination

Summary

Haseeb v. Imperial Oil Limited, 2018 HRTO 957

The applicant is an international student that alleged discrimination with respect to employment because of a pre-employment requirement that a prospective job applicant must be able to work in Canada on a “permanent basis”. The applicant alleged discrimination on the grounds of citizenship contrary to sections 13(1), 23(1) and 23(2) of the Code in connection with Imperial Oil’s job posting/advertising.

Throughout Imperial Oil’s selection process, the applicant was a student at McGill University completing his engineering degree. He was an international student and his visa permitted him to obtain a work permit for on-campus part-time work and for full time work during regular breaks between academic terms. Aside from internships, for which he obtained temporary social insurance numbers (SIN), the applicant did not work while he was a student. On graduation, with a letter from his university attesting to completion of his credits for his degree, the applicant became eligible for a “postgraduate work permit” (PGWP) for a fixed term (3 years). The PGWP would permit him to work full time, anywhere and with any employer in Canada. The applicant anticipated that he would attain permanent residency status within three years and thus be able to settle and work in Canada indefinitely.

The applicant learnt from more senior students that Imperial Oil recruiters required graduate engineers to have permanent residency or citizenship to be eligible to apply for a permanent full-time job as Project Engineers. The applicant gave a positive response repeatedly to IO’s representatives’ questioning regarding his eligibility to work in Canada on a permanent basis and progressed through every step of the selection process for an entry level. His responses were in fact false.

The applicant was offered the position and as part of accepting the job offer, the applicant was asked to provide proof of his eligibility “to work in Canada on a permanent basis” by producing a Canadian birth certificate, Canadian citizenship certificate or Canadian certificate of permanent residence. Imperial Oil later rescinded the job offer because of the applicant’s misrepresentation of his status throughout the hiring process.

Issues

1. Is the requirement that an applicant be eligible to work in Canada on a permanent basis direct discrimination on the ground of citizenship? YES

2. Is the defence that the requirement is a bona fide occupational requirement (BFOR) available in the circumstances of direct discrimination? NO If the defence that the “permanence” requirement is a bona fide occupational requirement (BFOR) is available, has this defence been established? NO

3. Did IO engage in prohibited conduct described in s. 23(1) and 23(2) of the Code in posting or advertising the “permanence” requirement and in asking questions about this requirement in interviews? YES
 

Analysis

1. Evidence was presented proving that Imperial Oil requested that the applicant answer questions about his eligibility to “work in Canada on a permanent basis” at various stages of the selection process. He was ranked first among the job candidates, and except for the “permanence requirement”, the applicant met all other conditions of the offer of employment and would have been able to accept the offer by the stipulated deadline.

The Tribunal’s finds that the “permanence requirement” is discrimination based on the ground of “citizenship”. While a definition of “citizenship” is not contained in the Code, a reading of the three defences available under section 16 of the Code indicates that the legislature contemplated that any requirement, consideration etc. that distinguished among individuals on the basis of either “Canadian citizenship”, “permanent residence” status or “domicile in Canada with intention to obtain citizenship” is discrimination unless the requirement is imposed or authorized by law, or the other criteria are met for each of three defences. More specifically, in the Tribunal’s view, IO’s requirement amounted to a direct breach of the Code when it distinguished among job candidates who were eligible to work in Canada on the basis of citizenship and created categories of “eligible” and “ineligible” for progressing through IO’s screening process. (para. 11)

During the hearing, Imperial Oil characterized its requirement as an “occupational requirement” or an “employment strategy” that supported succession planning. IO’s evidence was that the permanence requirement was sometimes waived for candidates whose skills were in high demand.

The Tribunal found that Imperial Oil’s policy clearly granted an advantage to Canadian citizens and permanent residents as it required that job candidates be able to work permanently in Canada starting on their first day at work. The respondent, on the other hand, asserted that its policy does not disadvantage permanent residents who are not citizens, so the issue really amounts to a distinction made on the basis of “immigration status” rather than citizenship, and the Code offers no protection on this ground.

The Tribunal finds that IO’s “permanence requirement” imposed a disadvantage on the applicant and is linked to “Canadian citizenship” and “permanent residence”, terminology contemplated by the Legislature and used together when drafting a defence to “Canadian citizenship” being a non-discriminatory requirement under s.16 of the Code. The fact that IO’s requirement distinguished on the basis of “Canadian citizenship” and “permanent residence” does not morph the distinction to one based on “immigration status”. As in Washington above, it is sufficient that “Canadian citizenship” is engaged by IO’s requirement for it to run afoul of the Code on the ground of citizenship. (para 111)

Finally, the Tribunal finds that the dishonesty of the applicant in his responses to Imperial Oil regarding his eligibility to work on a permanent basis is not relevant to deciding whether the Code was breached. It is sufficient to find that IO’s decision to not hire the applicant was tainted by the permanence requirement.

As noted in the section immediately below, IO’s policy that distinguished between graduates who were eligible to work in Canada can be summed up simply as “IO does not employ new graduates who are international students with PGWP for entry level Project Engineer positions”. This is a simple, direct and complete bar to employment for a group of non-citizens as in Simpson-Sears, a leading case on direct discrimination, but in this instance based on citizenship. In the result, the Tribunal finds that IO engaged in direct discrimination based on citizenship. (para. 118)

2. To the Tribunal, the evidence was clear that Imperial Oil’s requirement that candidates be eligible to work in Canada on a permanent basis as a pre-condition to hiring is restricted to its highly skilled positions only:

In the Tribunal’s view, IO’s requirement operated as a simple and complete “citizenship” bar, albeit one that captured Canadian citizens and permanent residents. It directly screened out international students, who were eligible for post-graduate work permits on graduation, as “ineligible” for “career” Project Engineer entry level positions. The applicant, a PGWP holder, was the intended target/audience of IO’s bid to screen out a sub-group of non-citizens in a purposive fashion, an effectively bar them from employment until they obtained permanent resident status. As noted above, this Tribunal ruled that IO’s policy / requirement amounted to discrimination on the ground of citizenship. Thus, the Tribunal finds that a BFOR defence (e.g. section 11 of the Code) is not available to IO based on an application of the Court of Appeal’s carve-out from a BFOR defence in Entrop. (para. 123)

The Tribunal found that there was no evidence that the permanence requirement, while it allegedly pursued a business strategy of retention of trained personnel and succession planning, was linked to any specific task to be performed by the Project Engineer.

3. In the eyes of the Tribunal:

As the Tribunal has found above that the pre-employment requirement/ qualification (that required proof of eligibility to work in Canada on a permanent basis) is discriminatory, and no defences under the Code has been established by IO, IO’s prohibited conduct infringed the right of the applicant to equal treatment with respect to employment that is provided for by section 5 of the Code. (para. 152)

Remedy

The Tribunal made the following order:

a. Imperial Oil’s policy of requiring a job applicant to disclose in writing and verbally that she or he is a citizen or permanent resident of Canada is prohibited conduct (outlined in sections 23(1) and 23(2) of the Code) that directly violated section 5(1) of the Code, and is not saved by any defence available in the Code;

b. The applicant and the respondent shall advise the Tribunal within 45 days of receipt of this Interim Decision whether they are interested in engaging in mediation, with or without assistance of a Tribunal member, to settle this matter; and,

c. If mediation is not desirable, the Tribunal shall schedule two days for evidence and argument regarding damages to determine an appropriate remedial order. (para. 169)

The responded submitted a Reconsideration Request that was ultimately denied.

Summary

Iyioha v. University of Alberta, 2021 AHRC 39

The complainant, Irehobhude Iyioha, alleges that the respondent, University of Alberta, treated her adversely in the area of employment on the grounds of colour, race, and place of origin in contravention of section 7 of the Alberta Human Rights Act. The complainant contends that the respondent discriminated against her, as a self-identified Black Canadian woman, by hiring less qualified non-black candidates in tenure-track assistant professorships in the faculty of law in March 2018.

The complainant states that she originally applied for a tenure-track assistant professor position with the Law faculty in 2016. She was unsuccessful but was offered and accepted a two-year appointment as a non-tenure-track Visiting Assistant Professor. The complainant alleges that the Dean of the Law faculty, Dr. Paul Paton, made the offer as a strategic token effort and that his failure to hire the complainant in a tenure-track position indicated that he was not interested in long-term diversity hires.

After accepting the Visiting Assistant Professor position, the complainant was informed that five tenure-track positions were posted. Iyioha stated that she was told to model herself on a white colleague who had recently obtained a tenure-track position. The complainant alleges that this advice was an indication that hiring decisions were influenced by racial criteria. On November 17, 2016, the complainant states she met with the Dean who confirmed that she was not offered a position and also stating that it was too early for her to apply.

On June 29, 2017, the Dean posted a notice for five tenure-track assistant professorships welcoming all candidates to apply, regardless of their specialization. The complainant applied but was unsuccessful. The formal response provided to the complainant stated that “other candidates were found to be a stronger fit with the Faculty’s current needs.” The complainant contends that the candidate who was offered a tenure-track position was a doctoral candidate with fewer qualifications than the complainant as wells as a specialization that did not match advertised faculty needs.

As further evidence of racial bias in hiring, the complainant states that she was informed by two staff faculty that she was put on the Dean’s blocked list, that efforts were made by the Dean to thwart the complainant’s applications to other universities, and that the Dean had a pattern of faculty complaints against him during his tenure.

The respondent states that the offer of the Visiting Assistant Professorship was not an act of tokenism, but was evidence of the Dean’s intention to find a position for the complainant on the faculty.

Issues

1. Did the University of Alberta discriminate against the complainant during a hiring process? NO
 

Analysis

1. The respondent provided explanations regarding the hiring process, noting that the Faculty regularly makes hiring decisions based on specialization requirements regardless of whether they are stated in the recruitment notice. Additionally, the respondent mentions that while the complainant had published works in other fields, her main specialization was in health law and that this was not an area requiring additional support.

The respondent also points to the fact that the complainant made applications to other institutions but, to its knowledge, was not immediately hired, as evidence that the complainant’s qualifications were not superior to the five selected candidates. (para. 17)

While the complainant disagrees with the respondent’s hiring choices, a review of the candidates’ documented qualifications provides insufficient basis on which to overturn the Director’s decision.

The events prior to the 2018 hiring cycle occurred outside the Commission’s one-year limitation period pursuant to section 20(2)(b) of the Act.

The Commission also point out that, even though the complainant stated that the 2016 offer of a Visiting Assistant Professorship was made as a strategic token hire on the Dean’s part, the documents provided by the respondent do not support this view and suggested that the Dean’s efforts to find a role for the complainant in the faculty were based on legitimate interest in the complainant’s potential contributions. Additionally, the Dean’s efforts to modify the position’s title and amend the contract suggest good faith accommodation on his part.

Result

Complaint dismissed.

The Director dismissed the Complaint finding that the respondent’s evidence demonstrated the hiring process was based on academic/research focus and that discrimination on a protected ground was not a factor in the selection of the tenure-track candidates. (para. 20)

Summary

Yuille v Nova Scotia Health Authority, 2017 CanLII 17201

The Complainant, Melanie Yuille, is a registered nurse. She alleges that the Nova Scotia Health Authority discriminated against her after it rescinded a job offer already conditionally made to her, to work as a clinical nurse at the Dartmouth General Hospital, after it learned that because of certain health conditions, she could not work night shifts and could not change her shift rotation every few days, as is customary in many clinical nursing units, including the one for which she had applied.

She first started having epileptic seizures in 2010. As she sought and received treatment for this condition, she began to have difficulty working any type of rotating shift schedule. Later on she began to work in a private long-term care facility where the scheduling of shifts was more flexible.

On February 24, 2015, she submitted her application for a position in the acute-care unit on 4-West at the Dartmouth General site, included her resume, and soon after attended the interview. The Complainant acknowledged that there had been some discussion of the rotating shift schedule, and of the fact that there was a more urgent need for nurses to work the night shift. She said she was told that there were three vacant positions at the time, but she was not aware of the specifics of the shift rotation. At the time, the Complainant did not believe that she would be prohibited from working nights; only that frequent changes in shift would be something she could not do, because of her medical condition.

On March 26, 2015, the Complainant received a conditional offer of the job. In the questionnaire for Employee Health, the Complainant first disclosed that she had epilepsy, a sleep disorder, and other relevant health conditions.

The complainant met with the Occupational Health Nurse at Employee Health and had medical reports that cleared her to work with restrictions in terms of how frequent shifts should be changed and advising to avoid night shifts aside from occasional shifts.

In early April, the complainant had given her notice at the long-term care facility where she had been working. On April 21, 2015, an email message was sent to the Complainant, rescinding the job offer. She tried in vain to find someone in the HR Department who would discuss it with her, as she believed the accommodation request was reasonable and achievable.

As she was monitoring job postings in the aftermath of her failure to be hired for 4-West, she took note of the fact that 4-West posted three full-time nursing positions in June 2015, which were identical to the position for which she had applied in February. She noticed that there was a slight difference in the language of the posting. In February, there had been no mention of shift works or rotating shifts, while such a job requirement was written into the June posting. (para XXVII)

In September 2015, as a result of the complaint that the Complainant had filed, the Commission engaged the parties in a Resolution Conference to explore possible resolution of the complaint. This process was not successful,

Issues

1. Is there a duty to accommodate a person who is not yet an employee, but who is being considered for employment, or who was (as here) conditionally offered the job subject to (among other things) satisfactory clearance from the occupational health (or employee health) department? YES

2. Would it have been "undue hardship" for the Authority to fit the Complainant into the schedule, working only day or evening shifts, and not changing shifts (even between those two) more often than every six weeks or so? NO
 

Analysis

1. The Tribunal noted that it is a rare case where a prospective employee can prove that they were passed over for employment because of a disability, but that does not mean that the Human Rights Act does not apply.

It was also established by the evidence that the Complainant’s need for an accommodation was considered, but that effort only went so far:

Once it was established that she would not be hired for the specific job on 4-West, the job offer was rescinded and she was essentially “back to square one.” She was free to apply for other jobs, if she saw anything that interested her, but the Authority was not prepared to look for an accommodated position for her elsewhere in its system. That type of treatment is reserved for existing employees who, if they become disabled and unable to work at their previous job, even with an accommodation, go on a list and (usually if not always while collecting benefits) are considered for other jobs that may become available that are within their capabilities. (para. LXXXI)

2. The Tribunal did not hear any evidence that explained why shifts must rotate at the frequency they do. There was not a mention about what other types of schedules would be possible. The following reasons were cited by the respondent as a justification:

A. Hiring her would not have met the need for nurses able and willing to work night shifts. In other words, the ability to work night shifts is alleged to be a BFOR.

B. Hiring her to work only 8-hour days and evenings, or 12-hour days, would have required others to work fractionally more nights.

C. There might have been an extra cost to fill those night shifts with nurses working overtime.

D. Putting extra pressure to fill night shifts raised possible issues of patient safety.

E. There might have been a negative impact on the morale within the workforce, due to the perceived preferential treatment of the Complainant and/or the extra night shifts required of other staff. (para. CXIII.)

It is argued by the Employer that the combined effect of these represents an undue hardship, but the Tribunal found that none of these reasons taken individually, or collectively, amounted to the level of undue hardship.

Finally, the Tribunal stated:

I believe the Authority, probably in common with other similar institutions, is steeped in a culture that cannot accept a model other than that nurses should be able to rotate frequently and relentlessly through day, evening and night shifts, regardless of how punishing this is to their health, and how poorly it may affect their quality of life. Such a regime is hard on everyone, but more so on nurses with particular health problems. (para. CXXXV)

Result

$15,000.00 in general damages and ordering the Employer to accommodate the Complainant - assuming she still wants it - by providing her with a nursing position on 4-West.