Unconscious bias may unconsciously expose your workplace to liability

Employment decisions cannot be based on human right protected grounds, such as race, religion, or gender, among others. This includes decisions about who to hire, promote, or terminate.

On its face, this seems simple enough – do not adopt discriminatory rules such as "only males will be considered" or "individuals must be under the age of 55 to apply." In practice, however, this can be trickier. Hiring or promotion practices may indirectly disadvantage certain candidates based on perceived characteristics, skills, or experiences linked with a human right protected ground. Further, decision makers may have unconscious bias which improperly skews their decisions for or against certain candidates.

What legal recourse is available in those scenarios? Can an individual really prove they were indirectly discriminated against? These issues were considered in the recent Human Rights Tribunal of Ontario ("HRTO") decision, Ramsay v. Brantford (City), 2022 HRTO 1438.

The Facts:

The employee, Ms. Ramsay, had worked for the City of Brantford (the "City") for nearly 30 years. For the last 15 years, she held the role of Waste Reduction Coordinator.

In September 2017, she put her name forward for a new position, Collections Supervisor. Three candidates were selected to interview – (i) Ms. Ramsay, (ii) Mr. Nafziger, an internal candidate who was male, and (iii) an external candidate who was female.

After the interview process, Ms. Ramsay was not selected for the promotion. Instead, it was given to her male colleague, Mr. Nafziger.

The Litigation:

Ms. Ramsay filed a complaint to the HRTO, alleging that the decision to not promote her was discriminatory. She alleged that her sex/gender as a woman was a factor in denying her the promotion. In support of this, she claimed:

• Despite her superior qualifications and supervisory experience, Mr. Nafziger was preferred as the male candidate.
• Mr. Nafziger was coached in the interview process, which was designed in a preferential manner to focus on "soft skills" rather than technical knowledge, which had been the normal practice for prior promotion competitions.
• The City's hiring policies were not followed.
• It was more likely that conscious or unconscious gender-based discrimination was a factor in the ultimate decision to promote Mr. Nafziger.

The City denied all the allegations.

Legal Framework:

The HRTO began by outlining the legal framework for assessing discrimination in the context of hiring/promotion decision. It confirmed that a prima facie case will be established if the complainant can show:

1. The complainant was qualified for the particular employment;
2. The complainant was not hired; and
3. Someone no better qualified but lacking the distinguishing feature that is the subject of the human rights complaint (i.e., race, colour, etc.) subsequently obtained the position.

Once the complainant has established a prima facie case, the onus then shifts to the respondent to provide an explanation of events equally consistent with the conclusion that discrimination on the basis of a human right protected ground is not the correct explanation.

The HRTO recognized that in these kinds of cases there may not be direct evidence of the alleged discrimination. Rather, parties may have to rely on circumstantial evidence. In such a case, the question is whether "the inference of discrimination is more probable from the evidence than the actual explanation offered by the respondent".

Analysis:

Applying the above legal framework to the facts at hand, the HRTO noted the following:

• The interview was designed to focus on "soft skills", such as supervisory skills, which would benefit the male candidate, rather than the technical knowledge required for the job, which Ms. Ramsay possessed. This emphasis on "soft skills" was not supported by the actual role, which was largely administrative in nature and required technical knowledge.
• Ms. Ramsay was not encouraged to apply, despite being qualified. The evidence supported that Mr. Nafziger was the preferred candidate.
• The City did not follow its hiring processes set out in its Hiring and Employment policy, or its past practices for hiring. Rather, the decision was made off subjective interview scores alone.
• Ms. Ramsay had the requisite experience and qualifications for the job, and the evidence did not support Mr. Nafziger was more qualified.
• The evidence suggested that Ms. Ramsay was not selected because, among other factors, the position was thought to be characterized as a field job, which has been male dominated work.

Outcome:

The HRTO sided with Ms. Ramsay and found the failure to promote her was discriminatory.

Takeaways:

This case is a reminder of the importance of making sure hiring and promotion processes are designed to be inclusive and protect against bias, either conscious or unconscious.

To help avoid actual or perceived discrimination in the hiring/promotion process, we recommend the following best practices:

• Write a thorough job description and identify the necessary criteria versus the preferred criteria.
• Develop a standardized application process e.g. all candidates are asked the same interview questions.
• Follow established hiring policies and practices; failing to follow an established process may create a perception of bias.
• Consider whether unconscious bias may impact the decision-making process and how this can be mitigated.
• Document how the decision was reached e.g. keep notes from interviews or score each candidate.

If you have questions about your human right obligations or rights in the workplace, please contact a member of Lee Workplace Law. We would be pleased to assist.