Monday, 13 July 2015

Bigots tried to ruin a man’s employment career

Lavan Turner is a large black man who was working as a seasonal Canadian customs inspector in Victoria, British Columbia and had done so from 1998 to 2003. As a seasonal customs inspector, he had always received positive written performance reviews from his supervisors. There were  two competitions for full-time regular customs inspector positions with the Canada Customs and Revenue Agency (CCRA), to which the Canada Border Services Agency was a successor. During that time, he applied for each competition.  The first competition, posted by the CCRA on June 9, 2003, was for a customs inspector position in Vancouver. The second competition, posted on October 11, 2003, was for a similar position in Victoria.                         

Despite the usual criteria being satisfied, an eligibility restriction was added for the Vancouver competition, which provided that “applicants who have been interviewed for this position since January 1, 2002, will not be eligible for this process.”

Because Turner had not been interviewed for a customs inspector position in Vancouver, he considered himself eligible for the competition and thus applied. He passed the Customs Inspector Test required of all candidates. The next phase in the competition process involved two interviews. He was invited to attend the first interview, which was held on April 26, 2004 and which he passed.                                                                                                      

However, one of the members of the interview panel recognized Turner as an applicant who had previously been unsuccessfully interviewed for customs inspector positions in Victoria. Although Turner was successful in the first interview for the Vancouver position, he was subsequently disqualified from the competition because he was deemed to fall within the ambit of the above-described eligibility restriction.

Turner was the only candidate disqualified from the Vancouver competition on the basis of the eligibility restriction. At least one other candidate had also unsuccessfully applied for customs inspector positions in Victoria. In one case, the candidate had failed the paper review of her portfolio of competencies for a position in Victoria and had thus not proceeded to an interview for the Victoria position. Despite this, that candidate was not disqualified from the Vancouver competition. Another candidate bearing the same name as someone who had failed an interview for a Victoria competition was also not disqualified from the Vancouver competition; however, there was some confusion as to his identity.

In light of these two anomalies, Turner questioned the reasons for his disqualification by requesting further information from the CCRA. He received no reply to his inquiry. Do you get the feeling that the government was sticking him up that part of his anatomy where the sun doesn’t shine?  He certainly got that feeling.

 Turner was qualified for the Victoria 7003 competition, but he failed to pass the interview for this competition. That interview was held on December 13, 2003. The selection board for the competition failed him on two competencies: (a) effective interactive communication and (b) teamwork and cooperation. Where they the real reasons why they failed him?

Prior to these interviews, his supervisor had sent a long email to a number of members of the CCRA management group setting out the perceived failings of the appellant. The email was dated October 4, 2003, and was thus sent out approximately two months before the appellant’s interview for the Victoria 7003 competition and a little less than seven months prior to his interview for the Vancouver competition. That email noted that the Turner was perceived as someone who “sometimes shies away from the harder tasks, or knows the right procedure hoping supervisors will use their discretion and let him go the easier way.” It was also pointed out how other inspectors had complained that “he had left cash outs for others to do instead of doing them on his shift.”

Turner strongly denied the allegations made in that email, which contradicted the positive formal written evaluations that all his supervisors had given him, including the supervisor who had drafted the email. The appellant was the only seasonal employee who was the subject of such an email.

In light of his years of service as a seasonal customs inspector in Victoria, his positive employment evaluations, and his past experience in law enforcement-related activities, He formed the belief that his disqualification from the Vancouver competition and his failure to pass the interview for the Victoria 7003 competition were the result of his being unfairly stereotyped within the CCRA as a big lazy black man. He consequently filed a complaint pursuant to the Canadian Human Rights Act, which was subsequently referred to the Tribunal by the Canadian Human Rights Commission.

The Tribunal treated Turner’s complaint as someone raising the accusation of discrimination on the grounds of race, national or ethnic origin and age. No mention was made of perceived disability on the basis of him perhaps being overweight.

After setting out the facts and reviewing the viva voce (voice) testimony, the Tribunal found that the evidence did not support aprima facie (obvious) case of age discrimination. The Tribunal then went on to find that there was also no evidence of direct discrimination on the basis of race or of national or ethnic origin. The Tribunal recognized that, in order to make a prima facie case of discrimination on these prohibited grounds, Turner had to submit circumstantial evidence and inferences as to discrimination which he hadn’t done. 

When the matter eventually was before the Federal Court of Appeal, it was noted by the members of that court that no findings were made by the Tribunal as to the truthfulness of the alleged failings of Turner as set out in his supervisor’s email, or as to how and to what extent that email may have influenced the selection processes.  It would appear that the Tribunal accepted the allegations at face value which is always a big mistake if the allegations are not thoroughly investigated.

Having decided to assume a prima facie case of discrimination on the grounds of race or national or ethnic origin without making any findings of fact supporting such a case, the Tribunal then proceeded to consider whether the employer had provided reasonable explanations for disqualifying the appellant from the Vancouver competition and for failing Turner in the Victoria 7003 competition.

The Tribunal had in fact found that, even though there were serious questions as to the way in which the restriction in the Vancouver competition was drafted and unresolved questions concerning at least one other candidate who should have been disqualified, but was not, the explanation provided to the Tribunal for the disqualifying Turner was nevertheless reasonable. That was because the selection boards were interviewing the same unsuccessful candidates in successive competitions, and that the purpose of the restriction was to avoid interviewing the same candidates and to give them more time to develop customs inspector skills.

Even though Turner was the only candidate to be disqualified on the basis of the new restriction, the Tribunal did not consider this as a discriminatory act. Rather, the Tribunal concluded that if CBSA did not want to hire Mr. Turner for discriminatory reasons, it would have been much easier to do so by assigning him a failing mark (based on allegations) for his first interview.

 The Tribunal also found that the refusal to answer Turner’s request for explanations following his disqualification from the competition resulted from an excessive bureaucratic attempt to control workload rather than from a discriminatory act, even though Turner was entitled to an answer from the CCRA.

Regarding the Victoria 7003 competition, the Tribunal found that the selection board’s reasons for failing Turner at his interview were reasonable. This conclusion was reached even though Turner’s prior evaluations as a seasonal customs inspector were all positive. Nevertheless, the Tribunal erroneously accepted the CBSA’s view that these evaluations were not pertinent for assessing candidates for indeterminate positions. I can’t imagine why the Tribunal would ignore Turner’s positive evaluations unless of course, there was a bigoted reason.

Despite the Tribunal’s failings, the Federal Court judge found that the Tribunal had stated the correct test and applied the relevant legal principles correctly. The judge rejected all of Turner’s contentions concerning the treatment of the evidence by the Tribunal, and found the Tribunal’s reasons to be adequate. Subsequently, Turner’s application for judicial review was consequently dismissed.

Turner appealed and the matter went before the Federal Court of Appeal.  In that court, Turner’s lawyer challenged the decision of the lower court on various grounds, including notably on the ground that the Tribunal had failed to address his complaint of discrimination on the basis of perceived disability. The allegation of perceived disability on the basis of weight was included in his initial complaint. The narrative of the complaint filed with the Commission ended with the following paragraph;  

“I lay the blame solely on the Chief of Customs in Victoria and her possibly spreading information about me to the other recruiting unit. I believe that racial discrimination and discrimination on [my] weight was the ultimate factor in my demise of a customs career. I am currently employed in another government position where I placed first on the competition list. I just find it interesting that I only have a problem with customs. I have been deliberately failed on competitions, passed over for promotions, denied employment in Victoria in 2004 and screened out improperly in Vancouver in 2004.” unquote

It was apparent from the record of the Tribunal that the ground of perceived disability on the basis of weight was raised and discussed on many occasions during the proceedings.

Turner’s lawyer also argued that the Federal Court judge erred in not properly identifying this issue of procedural fairness, in failing to review it on a standard of correctness, and in failing to correct it. He suggested the real reason why his client was turned down for the positions when he said;

“He’s an older, black male and it’s his (Turner’s) position that those factors, as well as his size, (obesity) were the reasons why he was denied this employment. And at the end of the day what I think you will find, sir,  is that it’s the perception of an older, black male who is large. And you’ll see from the complaint form as well that Mr. Turner’s size is identified as a basis (for the refusal) as well.” unquote

The chairman of the court then said, “And so your argument is going to be, that he (Turner) applied to become indeterminate other than through a competition [and that] he was denied that opportunity and managers hired students through the Bridging Program and therefore, he was discriminated on the basis of disability, his race or his age.”  unquote

The lawyer answered in the affirmative.

The chairman of the court wrote the following decision and the other two members of the court agreed with his opinion.

"In my view, the appellant’s complaint that he was also discriminated against on the ground of disability was before the Tribunal and was sufficiently significant that the Tribunal was under a duty to deal with it or to explain why it did not. In the absence of any reasons in the Tribunal’s decision or of a clear answer in the record, it is not the role of a reviewing court to speculate as to why the Tribunal did not deal with the issue of perceived disability or what conclusion the Tribunal would have reached if it had addressed the issue. Insofar as the reviewing court has reasonable concerns as to the potential outcome of the proceeding had the issue been addressed by the Tribunal, the judicial review application should be allowed.  For these reasons, I would allow this appeal, set aside the judgment of the Federal Court, and giving the judgment that the Federal Court ought to have given, I would allow the application for judicial review, set aside the decision of the Tribunal, and refer the appellant’s complaint back to the Tribunal for a new determination by a different member. I would also award the appellant his costs in this Court and in the Federal Court."

I don’t know what the Tribunal’s new decision was but in my opinion, he was entitled to permanency in his employment and probably got it sooner or later. 

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