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Proof of Discrimination in Employment
Published in the June 2009 issue of Transportation Notes - View Article
The recent case of Khiamal v. Greyhound Canada Transportation Corporation and The Canadian Human Rights Commission, provides a good explanation of the expectations of a court pertaining to the determination of a human rights claim based on discrimination.
In this case, the Federal Court considered an application for judicial review of a finding by the Canadian Human Rights Tribunal that the Applicant, Mr. Khiamal, a mechanic with Greyhound, did not suffer discrimination, based on race as a result of being denied a promotion, being denied an opportunity to pursue training to enhance his skills and various other incidents of alleged harassment. The Federal Court allowed the review, and sent the matter back to the Tribunal for reconsideration, finding that the Tribunal’s decision was unreasonable based on the evidence.
The Applicant, Mr. Khiamal was a 57 year old mechanic at Greyhound. He was of South Asian descent. He had a 22 year employment history with Greyhound, during which he was often appointed “Lead Hand”, a position with similar supervisory duties to that of a foreman. In July 2002, he applied for the position of Night Shift Maintenance Foreman. He was denied the position in favour of another candidate, Kenneth Mullan, a non-minority employee with less experience and less competence than the Applicant.
Mr. Khiamal raised three grounds of complaint against Greyhound, all based on the prohibition against discrimination in the Canadian Human Rights Act. According to the Act, that prohibition extends to the decision to continue to employ an individual, to differentiate adversely in relation to an employee, to pursue a policy or practice that affects hiring, promotion and training, and to harass an employee in the workplace. The grounds of complaint of Mr. Khiamal were: (1) that he was denied the position of Night Shift Maintenance Foreman based on his race; (2) that there were a series of harassment incidents throughout his employment which were based on his race and (3) that Greyhound refused to approve training courses for the Applicant on the basis of race.
The Tribunal denied the application on all grounds. With respect to the denial of the Foreman position, the Tribunal’s conclusion hinged on the fact that it found that this occurred based on personal animosity between Mr. Khiamal and his supervisor Mr. Watson. Mr. Khiamal and Mr. Watson had an amicable relationship in the past, until Mr. Watson was promoted to act as Mr. Khiamal’s supervisor. At that point, the relationship began to deteriorate. While finding that Mr. Khiamal was more qualified than the employee who was hired and as such that the only differentiating character between the two candidates was race, which amounted to a prima facie case of discrimination, the Tribunal accepted Greyhound’s explanation that the reason for the denial of the position was a history of personal conflict. The Tribunal found that this “improperly influenced the hiring process” but ultimately, this was not discrimination based on race. Notably, the Tribunal founded its decision on a conclusion that while discrimination could be inferred from the circumstantial evidence, nevertheless “the inference of discrimination must be more probable than other possible inferences.”
The Tribunal also denied the rest of Mr. Khiamal’s claims, pertaining to “ongoing and historic harassment” and the denial of training. At least part of these incidents, the Tribunal found, could be attributed to the ongoing animosity between Mr. Khiamal and Mr. Watson.
On Mr. Khiamal’s application for judicial review, the Federal Court considered whether the Tribunal’s findings of “mixed fact and law” were reasonable. The Federal Court focused particularly on what kind of evidence is required to establish discrimination and how such evidence should be weighed by a human rights tribunal. The Federal Court explained that it is extremely difficult to prove discrimination on the basis of direct evidence. Rather, more often than not, a tribunal will be required to look to all the circumstances of the matter to determine whether there exists the “subtle scent of discrimination”. Most importantly, the Federal Court underlined that discrimination does not need to be the only factor for an employment decision in order to invoke the non-discrimination legislation.
The Federal Court found that the Tribunal made a number of significant errors in assessing the evidence. First, the Tribunal unreasonably narrowed down the explanation for the denial of the Foreman position to that of “personal animosity” and the deterioration of the relationship between the Applicant and his supervisor. This was erroneous insofar as the fact that the Applicant and his supervisor had once been friends would not eliminate the possibility of racial bias. Furthermore, the Applicant had not contributed to the deterioration of this relationship by insubordination. Finally, Mr. Watson himself did not confirm that the deterioration of this relationship had factored into his hiring decision; in fact, he testified that he and the Applicant were still casual friends. The Tribunal should thus not have accepted the explanation provided by Greyhound.
Even more importantly, the Court found that the Tribunal erred in accepting that discrimination could be one of the factors involved, but that it had to be “more probable than other possible inferences”. The Court outlined in no uncertain terms that it is sufficient to establish that discrimination was just one of the factors affecting the decision not to hire Mr. Khiamal as Foreman. As such, the Court found that the Tribunal failed to consider the evidence as a whole, including past incidents of harassment, and the fact that Greyhound failed to take any remedial measures with respect to these incidents.
Finally, the Court faulted the Tribunal for failing to advert to statistical evidence of minority under-representation in Greyhound’s workplace. The Court found that such evidence is highly relevant, and the Tribunal must at the very least take it into consideration, even if it would not attribute much weight to it. The Tribunal was asked by the Court to reconsider the claim with respect to the hiring decision, as well as the other alleged incidents of harassment
Khiamal v. Greyhound Canada and the Canadian Human Rights Commission, 2009 FC 495