Human RIghts and Ageism

Human Rights Issues and Ageism in Educational Hiring

When hiring a new employee it is imperative to be aware of the relative governing employment and labour laws, especially those concerning human rights. Section 5(1) of the Human Rights Code (RSO 1990, c. H. 19) dictates clearly that:

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, gender identity, gender expression, age, record of offences, marital status, family status or disability. R.S.O. 1990, c. H.19, s. 5 (1); 1999, c. 6, s. 28 (5); 2001, c. 32, s. 27 (1); 2005, c. 5, s. 32 (5); 2012, c. 7, s. 4 (1).

It remains obvious that this regulation is a key aspect in fair hiring practices in Ontario, however this section of the code has implications that go beyond the words seen above. In the case Nelson v. Lakehead University, [2008] OHRTD 39, the Ontario Human Rights Tribunal stated that employers have a duty to investigate human rights claims just as much as they do to follow the code. This allows employers to ensure that their work environment is discrimination-free and provides for a great amount of accountability when a complaint is reported.

Facts

In 2002, Dr. Robert Nelson applied for a full-time assistant professor position at Lakehead University.  Dr. Nelson was not successful in obtaining the position, however after receiving the hiring committees decision he was contacted by two professors. One of the professors, who was a member of the hiring committee, informed Dr. Nelson that his age had been a factor contributing to him not obtaining the position. 

Dr. Nelson subsequently contacted the Human Rights Commission and filed a complaint against Lakehead University and the hiring committee for age discrimination. This complaint was brought to the attention of the Dean via a letter written by a professor on the hiring committee. The professor on the hiring committee simultaneously resigned from the committee because of this issue.

Issue

The main issue in this case, besides whether actual age discrimination occurred, was whether the Dean adequately handled the allegations of a human rights violation correctly.

Decision

Vice-Chair Kathleen Martin of the Ontario Human Rights Tribunal found that Lakehead University and the hiring committee did not discriminate against Dr. Nelson because of his age. However, it was found that the Dean’s response to the human rights complaint was inadequate and he failed to take reasonable steps to investigate the age discrimination allegations. Vice-Chair Martin pointed out that Tribunal jurisprudence has established that included in section 5(1) [stated above] is a duty for an employer to properly investigate a complaint of discrimination if one is reported. As stated in Laskowska v. Marineland of Canada Ltd. (2005), 53 CHRRD/262 at para 53:

It would make the protection under s. 5(1) to a discrimination-free work environment a hollow one if an employer could sit idly when a complaint of discrimination was made and not have to investigate it. 

Thus, reasonable steps must be taken to address allegations of discrimination. In this case, Vice-Chair Martin found that the Dean did not take adequate steps to investigate this allegation. The direct action the Dean took in response to the allegations was to:

  • Draft a letter to the concerned professor indicating the seriousness of the allegations in a dismissive tone;
     
  • He did not inform the committee directly about the reasons for the concerned professor's resignation, nor inform them of her specific allegations regarding age bias in their selection;
     
  • He informally mentioned during a lunch with faculty the importance of following the Human Rights Code; and 
     
  • He held the voting results for faculty selection for ten days in case there was need for a further review.

The Dean’s arguments in favour that he did take adequate steps to investigate the discrimination claims were that the steps he took were appropriate to the university setting, and that he had to take into consideration special circumstances. These special circumstances included administration concerns, past “ill will and animosity towards the Dean” by the concerned professor, and a concern for morale, collegiality, and functioning of the faculty.

Vice-Chair Martin’s response to the Dean’s arguments was to stress that there is no lower standard of responsibility to investigate human rights claims for university environments. Despite all of these special circumstances the Dean still had a duty to investigate the claim that was brought to his attention by the concerned professor. Simply put, the actions the Dean took “did not constitute a reasonable investigation into the allegations.” Vice-Chair Martin further stipulates that the appropriate actions the Dean should have taken were to communicate to the concerned parties in a neutral fashion and outline the options that were available to investigate this matter properly. 

This conclusion is supported by the university’s own human rights policies, which the Dean did not comply with. The proper response in accordance with the university policy was to maintain confidentiality and to encourage the concerned professor to talk with a Harassment and Discrimination Officer and comply with their protocol. For the Dean’s non-compliance, Vice-Chair Martin lays blame on Lakehead University for not providing proper training to the Dean to deal with this situation properly.

Comments

There are two very important points to take from this case. 

The first point is to recognize and restate that employers have a duty under the Human Rights Code to properly investigate any allegations of discriminatory practices when hiring employees. This duty must be handled in a satisfactory manner and must be carried out congruently with other governing internal human rights policies and procedures. In this case, the Dean took steps which he felt were appropriate in the circumstances of the situation, however by not following the proper procedure it was found that he ultimately did not properly approach this issue.   

The second point is to realize that this duty is consistent across a number of employment areas and environments. Vice-Chair Martin presented very clear precedent when she refused to take into account a lower standard of duty because of the circumstances specific to the university environment. Although the steps taken by the Dean may have been sympathetic to the specifics of his faculty, he had a greater duty to uphold the Human Rights Code and properly handle the allegations brought to his attention. 

Author:

Maximilian Paterson

Human Rights Law Contact:

Don Shanks
Thunder Bay, Lawyer
Phone: 807.625.7135
Email: cheadles%23com|shanksd