CHRR Doc. 87-045
Board of Inquiry Decision under the ONTARIO HUMAN RIGHTS CODE
Gaston Taylor
Complainant
v.
Via Security Systems, Inc.
and
William Leverington
Respondents
February, 1983
September 24, 1986
Place:
Ottawa, Ontario
Before:
A. F. Bayefsky
Appearances by:
James Fleming, Counsel for the Ontario Human Rights Commission
John E. Merner, Counsel for Via Security Systems Inc., and William Leverington
RACE, COLOUR AND PLACE OF ORIGIN — employment denied on the basis of race — DISCRIMINATION — mixed motivation
Summary: The Board of Inquiry finds that Via Security discriminated against Gaston Taylor because of his race and place of origin when it made discriminatory pre-emeployment inquiries and refused him employment as a security guard.
Gaston Taylor comes from Guyana where he was a member of the police force. He applied for work as a security guard with Via Security, and filled out an application form which required that he give information regarding his citizenship, place of birth, and complexion. The Board of Inquiry finds that these questions violate the Ontario Human Rights Code.
Via Security gave three reasons for refusing Gaston Taylor work as a security guard. Via considered him overqualified. Because he was a landed immigrant, not a citizen, Via Security thought that it would take more time than usual to get a security guard's license for him. In addition, the job was at a site beyond the end of the bus route, and Gaston Taylor did not have a car.
The Board of Inquiry finds that Taylor's place of origin was one of the reasons for refusing him employment. Because Via Security hired another person who was a landed immigrant, and because there was not validity to the presumption that licensing would take longer, the Board of Inquiry finds that Via Security discriminated against Taylor because of his race and place of origin.
The Board order Via Security to pay $300 in compensation for damage to feelings and retains jurisdiction to hear evidence regarding compensation for wage loss if the parties cannot agree.
1This inquiry concerns a complaint by Mr. Gaston Taylor against Via Security Systems, Its Servants and Agents and Mr. William Leverington. The complaint alleges that the respondents used an application form and conducted an oral inquiry of Mr. Taylor during an interview for employment contrary to sub-section 22(2) of the Ontario Human Rights Code, 1981, c. 53, as amended, and further, that Mr. Taylor was denied employment by Via, contrary to sections 4(1) and 8 of the Code, on the grounds of race, ancestry, place of origin, colour, ethnic origin, and citizenship.
The Facts
2There are a number of facts which are not disputed by the complainant and the respondents and they are as follows.
3Mr. Taylor was born in Guyana. In Guyana he had a number of work experiences which relate to the job he applied for at Via. From 1972 to 1974 he worked full-time as a security guard or "supplementary constable" for the Guyana Sugar Corporation. In 1974 he enlisted with the Guyana Police Force and underwent six months of training to become a police officer. At the conclusion of this period of training Mr. Taylor was posted to the "riot squad", where his work consisted of guarding the residences of ambassadors. In 1976 he joined the Detective Department and took a one month Junior Detective Course. He then became a member of the Forensic Crime Laboratory during which time he engaged in the classification of fingerprints, the examination of scenes of crimes and the training of new recruits in the department. In 1979 he became a "supervisor corporal" and in that job supervised a staff of about ten constables in their task of classifying fingerprints, retrieving evidence from scenes of crime, and preparing fingerprint evidence for court purposes. In 1981 Mr. Taylor attended a course in Identification Methods and Techniques at the Canadian Police College in Ottawa. During this time he met his future wife. Upon his return to Guyana, he was promoted to the rank of Sergeant in the Detective Branch in the Crime Laboratory and worked in a supervisory capacity, instructing others in the techniques which he had learned at the Canadian Police College. In November 1982 he returned to Canada as a landed immigrant and married on December 26, 1982. Upon his arrival in Canada he began to look for work.
4On February 7, 1983 Mr. Taylor saw an advertisement for security guards in the Ottawa Citizen. The advertisement read:
SECURITY guards required full and part time. Apply in person. 185 Somerset St. West (at Elgin) Suite 208. between 9 and 5. Mon through Fri.
On February 8 Mr. Taylor went to the offices of Via. There he met Mr. William Leverington, who, as Operational Manager of the Security Guard division of Via, was handling the responses to the newspaper advertisement. Mr. Leverington gave Mr. Taylor an application form for the position of security guard.
5The application form included the following questions:
Nationality
Canadian Other (Specify)
Place of birth — city Province/state Country Date of Entry
Physical Description
height weight colour eyes colour hair complexion
6Mr. Taylor completed all the questions on the application form, including those quoted above. The actual application form completed by Mr. Taylor was not available at this Board of Inquiry since about three months after the time of the interview Mr. Leverington destroyed all those applications relating to unsuccessful applicants. However, Mr. Taylor testified that he completed the application form questions entitled "physical description" this way: eyes — "brown", hair — "black", complexion — "black". After completing the application form, Mr. Taylor handed it to Mr. Leverington, who noted the appearance of the applicant and quickly reviewed the form.
7Approximately 100 individuals completed the application form and the same procedure was followed in each case. Within the next week or so, Mr. Leverington telephoned about fifteen of the applicants and invited them to be interviewed on February 14 and 15. Mr. Taylor was one of those called and came in for an interview on February 14 with Mr. Leverington. The interview lasted approximately thirty to forty minutes.
8During the telephone call, Mr. Leverington asked Mr. Taylor to bring with him his landed immigrant papers. During the interview itself Mr. Leverington asked to see these papers. The evidence of Mr. Leverington was as follows:
Mr. Merner: During the course of the interview . . . I take it there were questions posed as to his citizenship?
Mr. Leverington: Yes, sir.
Mr. Merner: What would have been the purpose of that question, as you recall?
Mr. Leverington: One of the requirements of a security guard licence is that the person — a Canadian citizen does not have to show that he is a Canadian citizen, but any landed immigrant or otherwise must have documentation to back it up, and it must be attached with the licence form.
Mr. Merner: Do you have any recollection, Mr. Leverington, as to the discussion of the licence and how it would be reflected in the application with Mr. Taylor?
Mr. Leverington: It was implied that I needed the landed immigrant status papers in order for his application to go forward.
Mr. Merner: That would be if he were accepted for the job?
Mr. Leverington: Yes.
9Mr. Peter Leclair, the President of Via, also testified and the testimony of the two Via witnesses diverges from Mr. Taylor's in a number of respects. Mr. Taylor stated that during Mr. Leverington's phone call he was asked to bring various documents with him: his landed immigrant papers, any educational certificates and his marriage certificate. Mr. Taylor testified that during the interview Mr. Leverington asked: why he had come to Canada: to see his marriage certificate: whether his wife was Canadian: whether she was born here: and who were the witnesses to the wedding.
10At a much later date, in the fall of 1983 and after the receipt by the Ontario Human Rights Commission of the complaint of Mr. Taylor, the respondents were asked to complete a "Respondent Questionnaire". At the time Via received this questionnaire, Mr. Leverington was on leave. Mr. Leclair answered the questionnaire and in doing so, he spoke with Mr. Leverington on the telephone. The written response agrees that Mr. Leverington did ask Mr. Taylor why he came to Canada in order "to identify his incentiveness [sic] for employment". But Mr. Leverington testified that he did not ask Mr. Taylor to bring the marriage certificate to the interview or ask to see it during the interview. He agrees that Mr. Taylor did bring the marriage certificate to the interview and that the complainant did hand it to him. Mr. Leverington did not recall asking Mr. Taylor questions about whether his relatives were born in Canada, his wife's citizenship, or who were the witnesses to the document.
11During the interview the issue of transportation to the job site was raised. The job site for the contract (hereinafter referred to as the Amberwood contract) could not be reached by bus. Mr. Taylor testified that he did not recall how he answered the application form question "do you own a car?". He stated that his wife did own a car at the time and that he told Mr. Leverington that she, and other relatives, were willing to drive him to the site.
12Mr. Taylor and Mr. Leverington discussed other subjects during the interview, such as hours of work and rate of pay. At the end of the interview Mr. Taylor was told that his qualifications "looked good". Mr. Leverington added that he ended all his interviews with this remark. Mr. Taylor and Mr. Leverington agreed that Mr. Leverington mentioned to Mr. Taylor that he might be over-qualified for the job. Mr. Taylor responded that he did not care; he needed the work. There is disagreement about when Mr. Taylor would be contacted about the outcome of his application.
13On February 17, Mr. Taylor reached Mr. Leverington by phone. Mr. Taylor testified that Mr. Leverington told him "priority had to be given to other people", and when asked by the complainant what he meant said "I cannot explain that". In addition, Mr. Taylor asked whether there was a possibility of future employment with the company at any time and Mr. Leverington answered no. Mr. Taylor said that he was the only distinguishable minority among the group of applicants he saw on the day he filled out his application form. He formed the opinion that the word "priority" meant that priority had to be "given to other people who were more or less Caucasian and not minority or black". Mr. Leverington did not recall using the word "priority" but agrees that he was evasive about why Mr. Taylor was not hired, because "it was a policy of mine not to give out the information to everybody that phones." Mr. Leverington denied that he told Mr. Taylor there was no possibility he would ever be hired.
14The Board heard testimony from the four successful applicants for the Amberwood contract, all of whom responded to the February 7th advertisement. Some of them believed that they had been hired after the interview with Mr. Leverington. Both Mr. Leclair and Mr. Leverington testified that this was not the case, and the four applicants were only hired after Mr. Leverington had consulted Mr. Leclair. Assuming the latter to be true, Mr. Leclair's testimony concerning the reason that Mr. Taylor was not hired is direct or first-hand, rather than simply an account of Mr. Leverington's reasons for not hiring Mr. Taylor.
15The respondents gave a number of different reasons why Mr. Taylor was not hired. They relate to three subjects: (a) overqualification (b) obtaining a security guard licence, and (c) transportation.
(a) OVERQUALIFICATION
16The overqualification of Mr. Taylor was a difficulty in the eyes of the respondents that was raised, albeit rather obliquely, during his interview. It was also mentioned, again somewhat indirectly, in the reply to the Respondent Questionnaire. Mr. Richard, the investigator for the Ontario Human Rights Commission, testified that overqualification was again raised by Via at a fact-finding conference held in December 1983. Mr. Leclair testified that overqualification was a reason for not hiring Mr. Taylor. The rate of pay for the Amberwood contract was $4.00 an hour from which Via deducted 25 cents per hour for uniform and training costs. Mr. Leclair believed that overqualified individuals were likely to stay on a job with such a low rate of pay for a shorter period of time than others. A higher turnover rate would mean greater costs to the company, for such things as uniforms. Mr. Leverington also testified that he and Mr. Leclair decided that Mr. Taylor should not be hired because of his overqualification. Counsel for the Commission pointed to the fact that a subsequent employee of Via, a Mr. Koffler, was hired in April 1983 despite his relatively high qualifications. However, Mr. Leclair himself hired Mr. Koffler; he knew Mr. Koffler prior to his being hired; and he was hired mainly as a supervisor of security guards rather than as a security guard. The uncontradicted evidence is that Mr. Koffler had his own car, and was hired for a job that required driving from site to site as a supervisor.
17In sum, the evidence indicates that "overqualification" for the position as a security guard, raised as a difficulty for the respondents fairly consistently throughout, was a reason for not hiring Mr. Taylor. Although in his testimony, Mr. Leclair stated that it was the primary reason for not hiring the complainant, his position seems inconsistent with his reply to the Respondent Questionnaire and I find that it is only one of two equally important factors in the respondents' decision not to hire Mr. Taylor. In addition, at least two of the four individuals hired for the Amberwood contract had various characteristics that might have made them the subject of similar concerns about the length of time they were likely to stay on the job: their full-time studies and their need to hitchhike to the job.
(b) OBTAINING A SECURITY GUARD LICENCE
18Mr. Leverington testified that he asked Mr. Taylor to bring his landed immigrant papers to the interview and during the interview posed questions about his citizenship. The reason he gave was that landed immigrants must have documentation to prove their status when applying for a security guard licence and he needed these papers for the security guard licence application form which Via would have processed after Mr. Taylor's hiring.
19In Mr. Taylor's complaint form to the Ontario Human Rights Commission he states: "During the interview, Mr. Lawrenton [sic] asked me what country I come [sic] from, why I had come to Canada, and whether I was a landed immigrant or a visitor." With respect to this statement, the reply to the Respondent Questionnaire states: "true . . . When Mr. Taylor had indicated he was not a Canadian citizen, he was asked to identify his status as per application form. Experience dictated that not being a Canadian citizen would not stop a person from obtaining a Security Guard licence, but it does cause additional delays in obtaining one and the same applies in the position between landed immigrant and a visitor. Such documents must accompany the Security Guard Licence application form." Later on in the written response it states: "As Mr. Taylor, who was one of the well qualified, was not a citizen and only a recent arrival to Canada, it is known within the Security Guard business that it takes quite a few weeks (sometimes longer) to obtain a licence as a guard. Because of the immediate need, and knowing that Mr. Taylor's application for a license would take a lot longer than the time allowed, other acceptable people who could be licenced in time were chosen."
20At the hearing Mr. Leclair added the following:
Mr. Leclair: . . . the number one point would be the over-qualification. There were a couple of other things as well which came into the picture. Being the 17th, we wanted the licensing the very next day on the 18th . . . we were going to courier down on the 18th all guard applications for this contract that was to be signed on the 21st.
Mr. Merner: Why should that be of any concern to you concerning Mr. Taylor?
Mr. Leclair: The difficulty with Mr. Taylor, again, would be the fact that it is very difficult to check into somebody's background. His background appears to be impeccable. Mind you, it is from a country that is outside of Canada. It was very difficult at that particular time to be able to check on the person's past history, et cetera, other than what is written on paper.
21Taking Mr. Leclair and Mr. Leverington's statements together, they suggest that one of the reasons for which Mr. Taylor was not hired was his place of origin and citizenship. They believed that the fact that Mr. Taylor was not of Canadian origin and not a Canadian citizen would mean that it would take longer for the company to obtain a security guard licence for him. Later testimony of Ms. Theresa Filapelli, Office Manager of the License Processing Unit of the Ontario Provincial Police, indicated that these facts would not have delayed the granting of a licence for Mr. Taylor. Nevertheless, Mr. Leclair and Mr. Leverington believed that they would and stated that this was one of the reasons for which Mr. Taylor was not hired.
22At the same time however, according to the application forms of the four individuals hired for the Amberwood contract, one, a Mr. Wai Man Tye, was not a Canadian citizen. Mr. Tye also indicated on his application form that he was of Chinese nationality. There is no evidence as to whether Mr. Tye was asked to bring any documentation relating to his status in Canada to the interview, nor whether any such documentation was examined with him during the interview. Both Mr. Tye and Mr. Leverington testified that the issue of Mr. Tye's nationality was raised during the interview when, in Mr. Tye's words, "Mr. Leverington told me to expect that there would be people out there that will call me names because of your nationality but just to ignore them, brush it off, because you are working for their company and they want you to put your best foot forward." Or in Mr. Leverington's words: "I was a bit concerned about whether he [Mr. Tye] would accept any criticism from the general public. In my past experience, people in a minority are criticized and very often abused. I asked him what his attitude would be. Would he be able to accept any slurs made against him?" Such a question does suggest that race, colour or ethnic origin was in the mind of the employer as raising issues related to the suitability of the individual for employment. Nevertheless, Mr. Tye was hired. The hiring of Mr. Tye does indicate that the employer's concern over the difficulty of obtaining a licence for non-Canadian citizens was not consistently applied.
23At the same time, Mr. Taylor was called for an interview, as one of approximately fifteen individuals out of about one hundred applicants, even though the respondents knew his race, colour and ethnic origin. I therefore rest my conclusion on the respondents' admission that place of origin and citizenship were factors, in the context of obtaining a security guard licence, in the decision not to hire Mr. Taylor. Although it is unnecessary to go further in view of this finding, I would hold that race, colour and ethnic origin were not grounds upon which the respondents' based their decision not to hire Mr. Taylor. Similarly, I do not find that Mr. Leverington's statement about "priority" (if indeed it was made) meant priority had to be given to whites as opposed to blacks.
(c) TRANSPORTATION
24The third reason which the respondents gave for not hiring Mr. Taylor concerned transportation to the job site. Mr. Taylor testified that he told Mr. Leverington during the interview that his relatives would drive him to the job. Mr. Leverington testified: "It was the way it [the question about transportation] was answered that I felt there would be, periodically, problems cropping up." Mr. Leclair's testimony with respect to the issue of transportation suggests that this issue was not in the mind of Mr. Leclair at the time of the decision not to hire Mr. Taylor and appears to have been elaborated in the course of this complaint. In view of the fact that Via hired individuals who did not have cars, nor anyone to drive them to the site and who would have to hitchhike past the last bus stop, I find that transportation difficulties did not constitute a reason in the minds of the respondents for not hiring Mr. Taylor.
The Law
(a) THE APPLICATION FORM
25Via's application form for employment included a number of questions relating to nationality, place of birth and complexion, which indicate a violation of the Ontario Human Rights Code, 1981, sub-section 22(2). Sub-section 22(2) states:
The right under section 4 to equal treatment with respect to employment is infringed where a form of application is used or a written or oral inquiry is made of an applicant that directly or indirectly classifies or indicates qualifications by a prohibited ground of discrimination.
The application form classifies applicants on the basis of race, place of origin, colour, and citizenship, which are all prohibited grounds of discrimination under section 4 of the Code. With respect to citizenship, the context of this case does not fall within any of the exceptions within section 15 of the Code, and therefore is not saved by sub-section 22(3).
26Via created the form when it began its business by copying a similar form used by the Ontario Provincial Police. The provincial form for a security guard licence would have to be filled in for each employee that Via intended to hire as a security guard, and so Via's application for employment reflected the same information that would be necessary for the subsequent provincial form.
27The provincial form "Application for Employee Licence Under the Private Investigators and Security Guards Act" asks for the following information:
Nationality
Canadian citizen Other (specify)
Place of birth
city, town, village
province, state, country
port of entry
date of entry (date, month, year)
Physical description
height weight eye colour complexion hair colour
28The provincial form itself is dictated by Form 6 of R.R.O. 1980, Reg. 800 under the Private Investigators and Security Guards Act, R.S.O. 1980, c. 390. (Form 5 of Regulation 800 asks for similar information, in addition to information concerning "marital status: married, divorced, widower, single".)
29When it was indicated to Via by the Ontario Human Rights Commission at the fact-finding conference that such questions on an application form for employment violated sub-section 22(2) of the Code, Via removed the offending questions from its application form.
30Despite the fact that this information was needed, it could have been obtained following the hiring of employees. In fact Mr. Leverington obtained other information necessary for the provincial form in just this fashion.
31The respondents' use of an application form classifying applicants by prohibited grounds of discrimination, clearly violated sub-section 22(2) of the Code.
32Although it is not necessary for the disposition of this case, it should be noted that Form 6 set out in Regulation 800 includes questions which are inconsistent with the spirit of sub-section 22(2) of the Code. They encourage violations of the Code as is clearly evident in this case, where an employer used the provincial form as an example.
(b) THE INTERVIEW
33In addition, the oral inquiry made of Mr. Taylor about his landed immigrant status, including the demand to produce papers establishing this status, directly classified him on the basis of citizenship. This again is contrary to sub-section 22(2) of the Code.
34While landed immigrant papers were necessary for the licensing application, they could have been obtained by Mr. Leverington after Mr. Taylor was hired, just as Mr. Leverington did with respect to other information.
Conclusion
35In reaching my conclusion I find it unnecessary to rely on exhibits 10–14 inclusive.
36I find that the respondents contravened sub-section 22(2) and hence sections 4(1) and 8, of the Ontario Human Rights Code, 1981 by using a form of application for employment that classified Mr. Taylor on the basis of his race, place of origin, colour and citizenship, and by making an oral inquiry of the complainant that directly classified him on the basis of his place of origin and citizenship.
37Further, I find that the information so obtained in contravention of sub-section 22(2) was an operative factor or proximate cause in the decision not to hire Mr. Taylor. In the case of R. v. Bushnell Communications Ltd. et al. (1974), 1974 CanLII 559 (ON CA), 4 O.R. (2d) 288 at 290 the Ontario Court of Appeal held in the labour relations context that "to create an offence under section 110(3) of the Canada Labour Code, R.S.C. 1970, c. L-1, union membership must be a proximate cause for dismissal, but it may be present with other proximate causes". This case has been applied in numerous Ontario boards of inquiry. Applying this doctrine here, the fact that the prohibited grounds of discrimination, place or origin and citizenship, constituted a proximate cause or an operative factor in the failure to hire Mr. Taylor, is sufficient to find a breach of section 4(1) and 8 of the Code, despite the fact that "overqualification" was also present as another proximate cause of rejecting Mr. Taylor's application.
Damages
38Once a board of inquiry concludes that there has been a violation of the Code, section 40 confers power on the Board to order a remedy.
39Having heard counsels' submissions on the issue of damages for mental anguish I find that compensation for such general damages should be set at $300.00. The infringement of the Code in this case has been wilful within the meaning of sub-section 40(1)(b). At the same time, I have taken into account the fact that Via ceased using the offending application form as soon as it was informed that the form violated the Code, and that it was encouraged to think its questions were relevant by the provincial licensing form. In addition, the reaction of the complainant to these events seems somewhat excessive, as the word "priority" would not in its ordinary use in this context connote a preference for a racial group, simply by virtue of the fact that the complainant saw no other visible minorities filling out application forms. Such an inference also cannot reasonably be drawn from an employer's mere unwillingness to explain the reasons for a failure to hire.
40In addition, I order the respondents to issue a letter of apology to the complainant. In case the parties have any difficulty in the implementation of this portion of my order I reserve jurisdiction to assist them in carrying it out.
41With respect to the issues of damages for lost wages and interest, I will reserve my jurisdiction. In the event that the parties are not able to resolve these issues, I invite the complainant's submissions within thirty days, the respondents' submissions within fifteen days thereafter, and the complainant's reply within seven days after that.