Abdolalipour v. Allied Chemical Canada Ltd., 1996 CanLII 20018

Abdolalipour v. Allied Chemical Canada Ltd.

1996-09-18

BOARD OF INQUIRY (Human Rights Code)

IN THE MATTER OF the Ontario Human Rights Code, R.S.O. 1990, c.H.19, as amended;

AND IN THE MATTER OF the complaint by Masumeh Abdolalipour dated January 3, 1992, alleging discrimination in employment on the basis of race, colour and sex;

AND IN THE MATTER OF the complaint by Raed Murad dated January 6, 1992, alleging discrimination in employment on the basis of race and colour;

BETWEEN:

Ontario Human Rights Commission

• and -

Masumeh Abdolalipour

• and -

Raed Murad

Complainants

• and -

Allied Chemical Canada Ltd.

Respondent

DECISION ____________________________________

Adjudicator :

Peter P. Mercer

Date :

September 18, 1996

Board File No :

BI-0020-93

Decision No :

96-031

A P P E A R A N C E S

Ontario Human Rights Commission

Mark Hart, Counsel

Allied Chemical Canada et. al., and Barry Riddell

Marilee Marcotte, Counsel

THE FACTS

1Allied Chemicals Canada Inc. operates a plant in Amherstburg, Ontario. It produces hydrofluoric acid and a refrigerant gas called Genetron. Each of the complaints before this Board of Inquiry arise out of the inability of the complainants to secure positions as permanent lab analysts at the plant.

2Three labs operate in connection with the Allied Chemical Plant. On the hydrofluoric acid side of the operation, commonly referred to as the HF plant, there are two labs: the HF Wet Lab, which performs relatively rudimentary product analysis, and a HF Instrument Lab, which is connected to the other lab but which performs more complex analyses. The third lab, in a physically separate location, is associated with Genetron production.

3Permanent lab analysts, who are members of the bargaining unit, are to be distinguished from temporary lab analysts who are hired by Allied Chemical to cover absences for vacations or illness. However, temporary lab analysts are hired for a maximum of 89 days before being laid off because of the collective agreement's stipulation that a lab employee becomes a member of the bargaining unit after 90 days. Mr. Murad worked as a temporary lab analyst on a number of occasions. He was first hired at Allied Chemical in late 1988 and worked there into early 1989. He was hired again as a temporary lab analyst for a brief period in May 1990 and then again from September to December 1991. Ms Abdolalipour worked as a temporary lab analyst at Allied Chemical from April through to the end of June 1991. Mr. Riddell, the personal respondent to both complaints, was at all relevant times a production manager at Allied Chemical.

4Within the time period relevant to these complaints, three permanent lab analysts were hired by Allied Chemical. James Petty began employment on July 8, 1991; Chris Kotevich worked at Allied Chemical as a temporary lab analyst during the summer of 1991 and obtained permanent status in October 1991; and Robert Hand began employment on November 12, 1991. All three are white males. Mr. Murad's complaint arises out of Allied Chemical's failure to interview him as part of the competition in which Mr. Kotevich and Mr. Hand were successful candidates for full-time lab analyst positions. Ms Abdolalipour's complaint concerns Allied Chemical's failure to advance her to the position of permanent lab analyst at about the time it was advertising for the position that was filled by James Petty.

5The Ontario Human Rights Commission alleges three separate violations of section 5(1) of the Ontario Human Rights Code. The first alleged violation is the denial of the permanent position to Mr. Murad; the second, independent alleged violation is discrimination in the process of hiring by failing to grant Mr. Murad an interview; and thirdly it is alleged that the effect of denying him his rights in the selection process while he was working as a temporary lab analyst at Allied Chemical had the effect of poisoning his work environment.

6Mr. Murad is of Arab ancestry and was raised in Iraq before coming to Canada as a student in August, 1983. In September 1983 he enrolled in St. Clair College to take English as a Second Language and completed his course work in 1984. The following year he enrolled in the three-year Chemical Engineering Technology program at St. Clair College. He described the balance of his courses as 80% chemistry and 20% engineering and shortly after finishing the program, around September 1988, he received landed immigrant status and began looking for employment.

7The Chemical Engineering Technology program is designed to prepare students for laboratory work and one of the businesses to whom Mr. Murad sent a résumé was Allied Chemical. He was contacted by Helen Wigle, a member of the clerical staff at Allied Chemical and was interviewed by Barry Boghean, a lab foreman, for the position of temporary lab analyst. The interview was successful and he began employment as a temporary lab analyst some time around December, 1988. He understood then that the position was only temporary. He began working in the HF Wet Lab. A typical day would begin at 8:00 a.m. and be spent analyzing samples of the substances used to make hydrofluoric acid. Although hydrofluoric acid is primarily a mixture of sulphuric acid and calcium fluoride, Allied Chemical produced it in both a concentrated and 70% diluted form. Samples would be taken at different stages of the process right up until shipment. The results of each analysis are written down in a log book and any abnormal result is immediately reported to the plant operator so that any necessary corrections can be made.

8Mr. Murad typically worked a twelve-hour shift on a rotating schedule of days and nights. In addition to his regular work, he spent some time with a group from Buffalo who were helping with the instrumentation of a new process of reducing arsenic in the plant. After the temporary lab analyst position ended in March 1989, Mr. Murad obtained a position as quality control lab analyst with Chemfill Canada in Windsor. This company made conversion coatings primarily for the automotive industry and his job consisted of analyzing various materials right through the production process to the final product. He described his responsibilities as relatively similar to those that he performed at Allied Chemical.

9Mr. Murad concluded that he should pursue a Bachelor of Science degree in Chemical Engineering, having observed, as he put it, "my supervisor who was a Chemical Engineer [and] knew less than what I thought I knew". He enrolled in the program at Wayne State University in Detroit, Michigan. This program normally takes four years to complete but Mr. Murad was given approximately one and one-half years credit for his course work at St. Clair College and was therefore able to complete the degree by August 1991.

10While he was completing his Engineering degree, Mr. Murad spent some additional time working at Allied Chemical. In the spring of 1990 he contacted Allied Chemical to see if there was an opening and was again hired by Barry Boghean as a temporary lab analyst. This time he only worked at Allied for approximately one month before leaving to take a position at General Chemical. General Chemical was more heavily involved in computer production and Mr. Boghean concurred that it would be useful for him to take that opportunity. Mr. Murad worked at General Chemical full-time from June until the resumption of his engineering program in September 1990; he then continued to work at General Chemical one day a week from September through December.

11After completing his degree, Mr. Murad again contacted Allied Chemical and once again spoke to Helen Wigle. He told her that he had finished his degree and was interested in permanent employment. She advised him that there was a temporary position available and that he could apply for it. By this stage, Mr. Boghean was no longer employed at Allied Chemical and the new lab foreman was Ian Elford. Mr. Elford interviewed Mr. Murad for the temporary lab analyst position sometime around the last week of August and Mr. Murad advised him of his academic status at that time. He recalls stating that he was looking for a permanent job as he would not be returning to school the following year but that Mr. Elford did not advise him that a permanent lab analyst position was being advertised by Allied at that time. He first found out that a full-time permanent position was being advertised somewhere around the middle to the end of September. This was confirmed for him in a discussion with Chris Kotevich not long after he started working in September. Mr. Kotevich had mentioned that he had spoken with one of the foreman, who Mr. Murad recalls as being Mike Bennett, about helping him to get an interview. A few days later, Mr. Murad spoke to Mr. Elford and to Helen Wigle about submitting an updated résumé and Mr. Elford told him to bring it in. He recalls doing so within a couple of days. Mr. Elford did not give him any indication of how far along Allied Chemical was in the hiring process and Mr. Murad waited a week and then asked him what the status was. Mr. Elford responded that he did not know but would speak to Rod Shaw and Barry Riddell about an interview for Mr. Murad and that he should hear something in the next couple of days. At this time Mr. Murad was aware that other people were being interviewed for the position because he saw them being shown through the laboratories.

12Mr. Murad had taken a couple of days off since he spoke with Mr. Elford about the prospect of an interview and, upon returning; learned from speaking with Chris Kotevich that Mr. Kotevich had been hired as a permanent lab analyst. Mr. Murad then saw Mr. Elford and said he had not heard anything about an interview and was told that a Bachelor of Science was needed for the position. Mr. Murad responded that he did hold a Bachelor of Science in Chemical Engineering and that Allied hired, referring to Mr. Kotevich, a Bachelor of Science in Biology as this was the degree that Mr. Kotevich held. Mr. Murad also asked about a second position that he understood to be available and was told that the company had somebody in mind who was older and with supervisory experience who might be able to replace Mr. Elford in the future. At no point during that conversation or any previous conversations, had Mr. Elford made any comment about Mr. Murad's career goals or his résumé or the timing of his application.

13Mr. Murad recalled that in conversation with another lab analyst, Wayne Renaud, he was told that the company might consider him as overqualified for the position of permanent lab analyst and be concerned that he might leave such a job in the future if he could find something in the field of engineering. Mr. Murad believes this was only Mr. Renaud's personal view and not one that had been relayed to him by anyone else and he responded by saying that many people leave jobs if they get better offers somewhere else. Apart from this discussion with Mr. Renaud nobody at Allied Chemical ever discussed Mr. Murad's career objectives or goals with him. He recalled a further incident during this third stint of temporary employment at Allied Chemical, when Mr. Riddell walked into the laboratory and asked him how everything was going. He replied that all was well and in a few more days he would remember everything that he had learned before. He then went on to say that he would like to obtain a permanent position and possibly move up within the company but that Mr. Riddell did not respond in any way.

14Mr. Murad felt that Mr. Elford had not been candid with him in explaining why two other more suitable candidates had been chosen for the permanent lab analyst positions. As time passed, and no further explanation was forthcoming from management, he came to believe that his background or appearance were the real explanation for not being given either position.

15He subsequently received a letter, dated November 15, 1991, from John Sweezey, the Human Resources Manager at Allied Chemicals. The text of the letter is as follows:

Dear Mr. Murad:

Allied Chemicals Canada is in receipt of your résumé regarding employment. Your credentials appear sound and potentially beneficial to us, however, there are no openings with which we may take advantage of your particular skills at this time.

Thank you for submitting your résumé. If your skills match our job needs at any time during the next six months, we will notify you. During this time period there is no need to reapply.

Best of luck in your job search endeavours.

Yours sincerely,

Allied Chemicals Canada

J.A. Sweezey Human Resources Manager

16In Mr. Murad's words, he thought the letter was "garbage" and "threw it across the room". He did not discuss the letter with anyone at Allied.

17After receiving the letter confirming that he would not be interviewed or hired for a permanent full-time position, Mr. Murad simply wanted to finish his 89 days temporary employment and leave. He stated that he became more attentive to incidents and jokes that previously he might not have paid much attention to. He recalled specifically a joke about blacks that had been placed on the bulletin board in the locker room and pictures of nude women in the operators' room upstairs in the plant and down near the dryer.

18In early December, 1991, Mr. Murad went to Ian Elford and asked him for a letter of reference that would outline his work performance. Mr. Elford indicated that there would be something problematic about putting a letter on company letterhead but he did produce a letter dated December 12, 1991 and signed it showing his title as laboratory foreman with Allied Chemicals Canada and providing his telephone number and extension. His letter indicated that Mr. Murad had been employed in the Quality Control Laboratory since September 16, 1991 and after describing the technical elements of his duties he concluded as follows:

Raed's position here was designated "temporary and has now come an end. Raed has worked for Allied in the labs before under another foreman who was also satisfied with his performance. During the past month, Raed has shown himself to be personable, energetic and co-operative with both management and other workers.

I have no reservation in recommending Raed as a dedicated, technically competent worker who will be an asset to his future employer.

Mr. Murad spoke with Bill Anderson, one of the union representatives, about his feeling that he was being discriminated against but the union was not otherwise involved in his lodging of the formal complaint. After leaving Allied Chemical, he looked for other jobs and some of the personal questions he was asked during interviews convinced him that his name might be a factor in determining whether he received interviews or job offers. Accordingly, he changed his first name to Robert and this is the name he was hired under by his current employer, Novamex Technologies located in Lavonia, Michigan. He did not obtain that position until May 1993 as a Quality Control Chemist. At the time of testifying he was not looking for a position as a Chemical Engineer, stating that he was satisfied with what he was doing.

19The résumé that Mr. Murad submitted to Mr. Sweezey and to Ms Wigle, which was date stamped October 2, 1991 by the Human Resources Department, had a statement of objective listed at the top of the first page: "to achieve a career of challenge and growth in Chemical Engineering". Once he became aware that he would not be moving to a permanent position at Allied Chemical, he sent out an updated résumé to a number of businesses and removed the statement of career objection before doing so. He did so at the suggestion of a cousin who occupied the position of plant manager in a stamping plant, and who advised him that he should delete it or include a statement of career objective oriented to each position for which he was applying.

20Among the three interviews that Mr. Murad obtained was one with the Pepsi-Cola Company in Toronto for the position of National Quality Assurance Co-ordinator. Although he had a second interview for this position, the company hired a person from within its own ranks who was based in Ottawa. He was also interviewed by the B.A.S.F. Corporation in Detroit for the position of Quality Controller in their coating and colorants division. A chemistry background was again being sought and a letter from the Human Resources Supervisor of B.A.S.F. Corporation to Mr. Murad, dated May 20, 1992, stated that "we do not feel we have a desirable match and we will be pursuing other candidates".

21Mr. Murad also received a letter from Koch Protective Treatments Inc. of Dayton Ohio who had received information about him from the placement services at Wayne State University. They indicated that there were two positions available: Development Engineer in their Research and Development Laboratory in Warren, Michigan and Process Engineer at their Dayton Ohio Manufacturing facility. Mr. Murad had two interviews but was not successful. He did not receive satisfactory reasons to explain his lack of success and recalls that at the second interview he was asked about his religious background.

22In cross-examination, Mr. Murad was asked whether one of his reasons for returning to university was to obtain a professional designation as a Chemical Engineer. He stated that a professional designation was not required for him to do the jobs that he was interested in although he might consider pursuing it in the future. He noted the example of his cousin who, as a plant manager, is a successful engineer but without the professional designation. Mr. Murad stated that the professional designation was not necessary at this point for him to get a better job.

23Masumeh Abdolalipour was born in Iran where she completed high school and served a three-year term as an army nurse. She then worked as a secretary at an advertising agency before coming to Canada to join her husband in 1980. In 1984 she attended a CGEP, at John Abbott College, where she completed a two-year program in pure and applied sciences in 18 months. She then attended MacDonald College of McGill University from 1985 to 1989 where she obtained a B.Sc. in Agricultural Chemistry, with a major in Biochemistry, achieving a mark of Distinction. While attending university Ms Abdolalipour also worked as a teaching assistant in biochemistry and received an award in 1988 for holding the highest average in the Department of Chemistry in that year. She also worked from May to September in 1988 as a student assistant in the Department of Plant Sciences and was employed there as a research assistant again the following summer. She described her work there as general laboratory duties such as making up solutions, caring for instruments and preparing tissue cultures. On completion of her honours Bachelor of Science degree, Ms Abdolalipour was intending to pursue a Master's degree in Microbiology. That summer she worked as a research assistant on a microbiology research project under the supervision of a faculty member and was responsible for much of the project's process work.

24At about the time she was due to begin the Master's program at McGill University, Ms Abdolalipour was offered a job with Agriculture Canada at the research station located in Harrow. She decided to take the position which was initially for three months but was later extended to six months. Her work involved the analysis of chemical herbicides with particular attention to absorption rates into the soil and water.

25Once she completed the six-month contract with Agriculture Canada, Ms Abdolalipour sent out several copies of her résumé in attempting to find another position. Once she followed up with Allied Chemical, she was told by Helen Wigle that there was a position available and invited her to come for an interview. She was subsequently contacted by Ian Elford to set up an interview and recalls him stating that the position was for three months but had a "potential for becoming a permanent position". The interview did not take place until Mr. Elford contacted her about one an a half months later. Prior to attending the interview, Ms Abdolalipour prepared herself on the assumption that she would have to prove academically that she was suited for the position. She was surprised when he asked her few questions about her skills and took the attitude that the job was relatively easy to perform. After the interview, which she recalled as taking less than an hour, she described him as "celebrating" and described how he introduced her to each person in the lab as "our potential candidate". Her own attitude she described as "I kind of was happy, but I am very mature and high educated, I did not know why he is so happy". Ms Abdolalipour described herself as becoming relaxed after reviewing the lab and the set-up because it was not at all complicated; indeed, she described it as "really primitive ... it basically was whatever I saw in high school". However, she described herself as having felt cheated after the interview because Mr. Elford did not appear interested in her skills and level of education and did not describe what would be expected of her.

26Ms Abdolalipour was contacted by Allied Chemical not long after her interview with Mr. Elford and started work on April 4, 1990. She started on the night shift where she was trained by Mr. Lee who told her simply to observe what was being done on the first evening. The second night she started to perform some of the work under his supervision and recalls that she was performing virtually all the tasks required of the position by her third shift. When asked how difficult she found the work she replied:

It was a first experience for me, but as a women this was a challenge and as my responsibility, if my brothers can do it, I can do it. And I have to just learn about it, and I did. So it wasn't easy, but I adapted myself.

She then described the required adaptation as being more to the size and noise of the large laboratory but said that while this was different from her quieter lab experience previously, there was "nothing complicated about it".

27Ms Abdolalipour continuing involvement with Mr. Elford, her immediate supervisor, was relatively modest. She worked rotating 12-hour day and nights shifts while he worked straight days from Monday to Friday. He did not actively supervise the work that she was doing in the HF Wet Lab. She was the only lab analyst working on her shift. In the adjacent Instrument Lab, there was only an analyst working on the day shift so that on the night shift Ms Abdolalipour was the only lab analyst present. As a lab analyst, Ms Abdolalipour worked in relative isolation reporting the results of her analyses to Jim Stewart, the foreman at the time of her scheduled shifts. She was frequently required to provide data to him directly and to respond if he requested further sampling. While she was working, Ms Abdolalipour regularly made notes and examined data in order to understand the rationale behind the analyses she was being asked to conduct. She had previously asked these questions of Ian Elford whose response to her had been "this is bald chemistry". Once she discovered why certain analyses were being carried out she explained the rationale to Ian Elford but felt that he did not like being told.

28During her first week on the job, Mr. Elford asked her if she could stop reporting the data to two decimal places and gave her the impression that other people were having difficulty interpreting the data. She was surprised that this higher degree of sensitivity was not important but went along with his request to report the data to only one decimal place. She was quite firm in her recollection that this was the only time that Mr. Elford has spoken with her about recording her data and also recalls that she very seldom lapsed back to reporting the data to two decimal places although this had been her experience in all her previous positions.

29Ms Abdolalipour was asked about any comments she had received from Mr. Elford about her work performance:

He told me about -- about two weeks past my working, he said, "Oh, Masumeh, you are doing a wonderful job. You are doing excellent, Masumeh." And he was shouting, and he was very jolly, and I was so happy.

She was adamant that he never made any negative comments or criticisms of her work but always said "you are doing great". She equally stated that no one else in management at Allied Chemical had made any negative comments or criticisms of her performance at work. She was then shown two Probationary Employee Evaluations reports prepared by Mr. Elford that 30 days and 80 days on the job respectively. The evaluation form has the following two paragraphs of text:

When completing this report remember this person could be with us for the next 30 years. We have a 90 day probationary period and we should make the most of it, with special attention to job assignments in order that the following factors can be evaluated. The problem has to be considered as though some day with his bidding rights he could be your highest rated operator or skilled tradesmen, and not just a labourer pushing a broom.

It is certainly to your advantage that each probationary employee be given a fair but tough evaluation, considering the long term benefits of a good employee versus the short term benefits of filling a job with just a body.

The evaluator is then asked to give a rating on a one to five scale in eight areas: quantity/quality of work, dependability, attitude, physical capabilities, comprehension i.e., learning ability, initiative, common sense and maturity. The key to the evaluation is shown on the form as follows:

1. excellent - exceeds job requirements
2. good - meets job requirements well
3. average - adequate job performance
4. needs some improvement
5. does not meet minimum requirements

30On the 30 day evaluation, the quantity/quality of her work is rated at a three with the following written comments: "quality good, quantity lacking; seems to have difficulty prioritizing". Her dependability is rated at two without comment. Attitude is given a three with the comment "does not get along with other analysts". Physical capabilities are also rated at three whereas comprehension or learning ability is rated at three to four. Initiative is rated at four as is common sense with the comment "often too precise for job at hand" and finally maturity is rated at three. Finally the evaluator is asked about an overall recommendation for seniority and Mr. Elford checked the "no" box.

31On the 80 day evaluation, Mr. Elford rated Ms Abdolalipour's quantity/quality of work at three with the comment "never fully managed time on day shift". Her dependability was rated at two again without comment and her attitude rated at three to four with the comment "often would not take suggestions from other analysts". Her physical capabilities were rated at two and her comprehension and learning ability at three to four with the comment "good to excellent for most aspects; data recording - poor". The final three categories - initiative, common sense, and maturity - were all rated at three. Again the final summary evaluation was against recommending her for seniority.

32Ms Abdolalipour testified that she had never been shown these evaluations at any time when she was employed at Allied Chemical and indeed had never seen them before. In response to direct questions, she stated that no one in management at Allied Chemical including Mr. Elford had ever raised a concern that the quantity of her work was lacking. Indeed, she recalled that she was virtually always ahead of her schedule. Nor did anyone ever raise any concern with her about establishing priorities in her work. Nor apart from the matter of recording data to two decimal places, did anyone express concern about her being too precise for the job although she recalled being told that she was too educated for the position. She was also sure that no one raised concerns that she had not fully managed her time when she was on the day shift and she believes that she performed her tasks efficiently. She also believes that she had a good working relationship with the other lab analysts and recalls that she would meet with the outgoing analysts when she started a shift and with the incoming analysts when she finished one. It was typically the case that the lab analyst who was leaving the prior shift would make suggestions about things that needed to be done or changed and she believes she was responsive to those suggestions and saw them as her responsibility. She was firm in her recollection that no one had ever questioned the accuracy of the results she had reported or expressed any concerns with her data recording.

33On the first day that she began working by herself after being trained, Ms Abdolalipour made the acquaintance of Luba Ristic who worked in the adjacent instrument lab. At the time she was dressed in a protective rubber suit with full head gear and was transporting hydrogen fluoride to the hood to be measured. Hydrogen fluoride is a dangerous chemical and, while Ms Abdolalipour noticed that Ms Ristic, whom she had never met, had entered her work area, she concentrated entirely on the task at hand. After she had taken the measurement and returned from the hood, Ms Abdolalipour removed her head gear at which point she was able to hear Ms Ristic ask her for certain data. Ms Abdolalipour indicated that she would be able to provide the data once she had performed the requisite analyses in only a few minutes; however, she described Ms Ristic as being quite forceful in claiming that the data should have been provided sooner. Ms Abdolalipour got the impression that Ms Ristic was used to having things done on a certain schedule and wanted no deviation from that. Ms Abdolalipour testified that she had not been given any instruction about providing data to Ms Ristic nor was she subsequently asked to provide results or data to anyone in the Instrument Lab.

34A few days later, the HF Wet Lab received a new Ph meter. Ms Abdolalipour noticed that it was simply sitting there for a few days and so she read the manual and started to set it up. While doing so, she happened to be standing by a bench which had a drawer. Ms Ristic came into the lab, walked over to the drawer and pulled it out hitting Ms Abdolalipour on the leg. Without apologizing or otherwise commenting, Ms Ristic then simply shut the drawer and left.

35Ms Abdolalipour described Ms Ristic's attitude towards her as "bossy", and as if she had just finished high school. At one point, Ms Abdolalipour advised her that she had worked eight years in chemistry and was already aware of the things that Ms Ristic was telling her about. Ms Abdolalipour further advised her that if she needed somebody to help her she could go to Ian Elford. This appeared to have upset Ms Ristic.

36Subsequently, Ms Abdolalipour was in the lab doing tests on arsenic when Ms Ristic again entered the lab and opened a cupboard again hitting Ms Abdolalipour on the leg. Ms Abdolalipour let the matter pass a second time but then found that Ms Ristic was critical of her work in a way that Ms Abdolalipour considered unprofessional. She advised Ms Ristic that she had a supervisor and would discuss the matter with him.

37She testified that she subsequently did not see Ian Elford to report on the incidents with Luba Ristic because she did not want her to lose her job. However, she did see Luba Ristic go to Ian Elford's office and noticed, when she passed by, that Ms Ristic appeared very upset. Ms Abdolalipour felt that Ms Ristic was not being professional; indeed, she felt if anything that "I should be in there". Mr. Elford never did come and speak to her about Ms Ristic and Ms Abdolalipour assumed it was because, knowing Ms Ristic, he would not judge it important enough to discuss with her. Indeed, Ms Abdolalipour subsequently had no dealings with Ms Ristic at all.

38Apart from Ms Ristic, Ms Abdolalipour described her relationship and interaction with the other lab analysts at Allied Chemical as friendly. It was understood that all the analysts depended upon one another so that they would always wait for the next analyst to arrive before leaving at the change of shift and report to one another about anything that had happened. The single exception, in Ms Abdolalipour's experience, was an older gentleman named John Vandenham. She said she had never been introduced to him nor even talked to him but that he never stayed until she arrived for her shift and was always late arriving when it was her turn to wait for him. She discussed this behaviour with one of the lab analysts, noted that she liked to be able to tell her two children when they could expect her to arrive home, but was told that special allowances should be made for Mr. Vandenham because of his age. Her own experience was that he was quite unfriendly although this was not the general experience. In addition to her other lab analyst colleagues, she found the production foreman, Jim Stewart and Mike Bennett, to be very kind and friendly.

39Ms Abdolalipour testified about another occasion when she answered the telephone in the lab and a women asked for Ian Elford. When Ms Abdolalipour explained that he was not there and must have stepped out for a few minutes, the other women simply banged down the phone. A few minutes later the phone rang again and it was the same women asking for Mr. Elford and insisting that he must be in his office. Ms Abdolalipour therefore went around to his office to check and also checked to see whether he might be in the coffee room. When she returned and explained that she still could not find him but would leave him a message, the women again banged down the phone. A few minutes later the women phoned again and when Ms Abdolalipour said that Mr. Elford still was not there the women again asked if he was present. When Ms Abdolalipour assured her that she was being honest with her and that Mr. Elford was not there, the women used what Ms Abdolalipour described as "the F word" and hung up.

40Ms Abdolalipour was quite upset by this altercation and told Mr. Elford about it when he arrived. His advise was that the women was used to talking with truck drivers whose speech was "really different", and she should try to have a sense of humour.

41Ms Abdolalipour was assigned a four digit employee number 8073. Some fellow employees told her that this was a number that would be given to somebody hired on a permanent basis and a payroll list was tendered showing this number beside Ms Abdolalipour's name under a heading - "Permanent Hires - Lab". She decided she would confirm this Mr. Elford and so went to his office and asked if he had any idea about her situation. She did not get a straight answer. Mr. Elford suggested that the person for whom she was filling in might be coming back and therefore the company could not make a decision until that was resolved and furthermore there was a concern over budgetary resources. He did not raise any concern about her work performance or her interaction with any of the other employees at Allied Chemical. He then said that if she wanted to work the following summer there would be no problem but she explained that she was seeking some security and asked if there was a possibility of anything. He assured her there was a possibility and that he would let her know.

42Ms Abdolalipour recounted how disappointed she was in the meeting with Mr. Elford and how she went to the bathroom and cried for a long time. She felt she had worked well beyond the level that was expected of her in order to do the best job possible. During the time that she was working at Allied Chemical, Ms Abdolalipour was not aware that the company was advertising for permanent lab analysts; nor did Mr. Elford ever tell her that there was such a position available.

43The pornographic pictures that Mr. Murad had spoken of were also witnessed by Ms Abdolalipour. One poster of a women, which she estimated to be about 75 x 95 cm in size, was located in the operator room which she had to visit a minimum of twice per shift in order to do some calculations. On average there would be three other employees, all male, present when she entered the room. She felt uncomfortable having to be in the same room with the poster and told one of the foremen, a man whose name she believes was Fox, that she did not think it was right. She got the impression that he agreed but nothing was done about it.

44In the course of her employment at Allied Chemical, Ms Abdolalipour learned that the environmental technologist, a man named "Bob" was leaving. She had conversed with him several times about the nature of his duties and went to him to confirm that he was leaving and to ask him whether he thought she would be capable of doing the job. He assured her that she would be quite capable and urged her to seek an interview. She therefore contacted Helen Wigle and an interview was arranged with the supervisor, Mr. Sinclair. Prior to the interview, she sought Bob's permission to borrow his textbook and review the data that he was collecting in order to prepare herself. Bob advised her to turn her mind to different ways in which they might be able to make improvements at Allied Chemical. He also told her that to be successful she would also have to be interviewed by Mr. Rod Shaw, whom she presumed to be Ian Elford's supervisor, and Mr. Riddell.

45Ms Abdolalipour described her interview with Mr. Sinclair as "very impressive" and that "he was really extremely excited". After they had been talking for somewhere between half an hour and an hour, he asked her to wait while he went to see if he could find Rod Shaw. Mr. Shaw then joined them and Mr. Sinclair made him aware of some of Ms Abdolalipour's ideas and she described Mr. Shaw as well as "excited" and "really happy". They then told her that she would have to wait for a third interview with Mr. Riddell.

46The interview with Mr. Riddell followed within a day or two. It was not like the previous two interviews because she felt that Mr. Riddell left it to her to lead the discussion. He had few specific questions or concerns to raise with her and she felt that he may already have made up his mind. At one point she remembers that she had to explain that she had two children but was not going to have anymore as she felt he needed to be assured that she saw herself as a career woman who intended to devote herself to the job. He did ask her about the fact that the title of her degree was Agricultural Chemistry and she was able to emphasize that her degree was a Chemistry degree and it simply had been granted through the Faculty of Agriculture. She undertook to provide him with full information about her course work and put it in his mailbox the next day but he did not ever respond.

47The interview with Mr. Riddell took place only a short time before her contract as a temporary lab analyst was to conclude. She was told that she would be called but received no further communication. Eventually she called and spoke to Mr. Sinclair who told her that they had hired someone else.

48Ms Abdolalipour had also contacted Mr. Elford to ask whether he might provide her with a letter of reference on the conclusion of her temporary position at Allied Chemical. He provided a letter dated September 10, 1991, which described her period of work and her duties in the lab and then concluded as follows:

Masumeh's position here was designated "Temporary" and served as vacation relief for permanent analysts. During her stay she was enthusiastic and attempted to understand parts of the process outside of her job duties.

I would recommend Masumeh as a dedicated worker who has a good working knowledge of chemistry. She will be an asset to any organization.

49After her temporary position with Allied Chemical came to an end, Ms Abdolalipour applied for Unemployment Insurance Benefits and certain questions arose regarding her entitlement. In the course of working through these issues with officials at the Unemployment Insurance Office, she became aware of a document provided to the Unemployment Insurance Office which described her as "not suitable for employment". She was completely taken aback at discovering this because no such suggestion had ever been made to her and she produced the letter of reference that Mr. Elford had provided her. This letter produced some excitement among officials with whom she was meeting and the suggestion was made to her that she might want to pursue the matter with the union at Allied Chemical. She did contact the union president, Bill Anderson, and he urged her to take the matter to the Ontario Human Rights Commission.

50Counsel for the Ontario Human Rights Commission took Ms Abdolalipour through the description of duties for each of the HF Wet Lab, HF Instrument Lab and the Genetron Lab. Ms Abdolalipour confirmed that the qualifications and experience set out on her résumé at the time she applied to Allied Chemical showed her as someone who possessed all the skills required to work in either of these labs.

51Ms Abdolalipour was subsequently unable to find another job from the point of her termination at Allied until the beginning of May, 1992. She therefore entered the Masters degree in Environmental Genotoxicology at the University of Windsor. She continues to feel cheated by her experience at Allied Chemical where she put in so much extra time and effort and was lead to believe she was doing a good job but ultimately was shut out.

52In cross-examination, Ms Abdolalipour was asked whether she felt she had the background in the Environmental Sciences necessary to fill the Environmental Technologist position. Her view was that she had the skills and training necessary to perform the job. The person who was ultimately given the job was a graduate from a four-year Bachelor of Applied Science program in Environmental Engineering at the University of Windsor. Ms Abdolalipour said that she had contacted the department head about completing the requirements for that degree and was told that she would only need to take a limited number of Physics courses before she would have fulfilled its requirements. Again, it was her view that her background and experience would have been sufficient to enable her to do the job as well as anyone just graduating from an Environmental Engineering program. She also emphasized that the actual content of her course work and the dimensions of her practical experience had never been fully explored at her interviews. When it was put out to her that Barry Riddell has a Mechanical Engineering background and therefore would not have been expected to ask her detailed questions about her training as a chemist, Ms Abdolalipour expressed surprise that no chemists had been present to interview her.

I mean, it was not -- you know, like why a Mechanical Engineer should say, make a decision on a chemist. This is -- maybe that is why the nature of the interview was so odd. It was just very odd, very unprofessional.

It is clear that Ms Abdolalipour had a very high level of expectation when she went for the interview with Mr. Riddell. She described running into Bob, the Environmental Technologist who was leaving, after she came out of Rod Shaw's office:

I was running around. I was so happy, almost in tears, telling him what happened. And he said, "Oh, you got it. I am sure you got it."

Bob also told her that it was unprecedented to have given her two interviews on the same day and that if Sinclair and Shaw were agreed then he was sure Mr. Riddell would have no problem. However, prior to her interview with Mr. Riddell, she spoke with Ian Elford about how successful she felt the other two interviews had been. He cautioned her not to get her hopes up so high and she felt that maybe he knew something but did not pursue it any further.

53On the complaint form which she filed with the Ontario Human Rights Commission, Ms Abdolalipour described herself as having been laid off by Barry Riddell rather than by Ian Elford. In cross-examination she confirmed that she believed that Mr. Riddell and not Mr. Elford was the key decision maker. When asked if she believed that Ian Elford discriminated against her in the sense of her not being a successful candidate for the lab analyst position, she replied that she believed he was just following the orders of Mr. Riddell.

54Jim Stewart was a foreman in the hydrofluoric acid plant during the time that Ms Abdolalipour was employed at Allied Chemical as a temporary lab analyst. She was assigned to his crew for a portion of the time and he was in contact with her in order to obtain laboratory results approximately three times per shift. He stated that he did not recall any "real problems" with Ms Abdolalipour's work performance during the time they worked together at Allied Chemical. His recollection of that time, some two years before, was not strong. He did recall that there was some question about the placement of decimal points but did not recall any wrong adjustments being made to the HF Plant as a result of any results reported by Ms Abdolalipour.

55Mr. Stewart was asked to compare the work performance of James Petty with that of Ms Abdolalipour. He stated that he did not care for Mr. Petty who was, in his opinion, lazy. By comparison he described Ms Abdolalipour has having a good work ethic:

Well she had a -- her work ethic was good. She may have --like, most people when they begin there, you are behind on your sampling. It takes a few weeks to get the routines down. If anything, she may have been trying to be too correct, but as far as work performance, if I had a choice I would have chosen the lady versus this Jim Petty. That is my view.

56Mr. Stewart also testified that there had been pornography in the control room but that it had been taken down and that a letter had come out from management stating that there was to be no pornographic material posted. However, there was some recurrence on a washroom door of the posting of pornography which would reappear after it was taken down. This washroom was off the Control Room and Mr. Stewart described it as available to workers of either sex but basically as having been used only by males.

57He also recalled that there had been some friction between Ms Abdolalipour and Ms Ristic. He had worked with Luba Ristic and agreed with counsel in cross-examination that he would neither describe her as bossy, aggressive or unfriendly. He did describe her as a bit of a complainer.

58Michael Bennett was also a shift production foreman at Allied Chemical from March 1987 until the plant was closed in August 1992. He worked with Masumeh Abdolalipour and had no concerns about her work performance. He was also asked questions about the recording of data on the laboratory daily reports and whether the recording of a reading to a decimal point rather than rounding up would have been likely to confuse those reading the data. His view was that it was unlikely that any real problem would be caused by this sort of recording because he and others responsible for plant operation understood the parameters within which the data were expected to fall. If they did not fall within these parameters then they questioned it immediately and thus any potential problems of misreading were likely to be caught almost right away. Mr. Bennett was asked what he would do as foreman if he had a problem with the performance of a lab analyst and he indicated that he would take the matter to Ian Elford. He could not recall ever having done so with respect to Ms Abdolalipour's performance but he did recall reporting one analyst towards the end of his time at the plant who did not take a sample. That analyst was John Vandenham.

59Maureen Muzzin worked as a secretary-clerk at Allied Chemical during the period that Ms Abdolalipour was employed there. Ms Abdolalipour described a conversation in which Ms Muzzin told her that she would have to prove herself and that she should not ask her male co-workers for help. Her office was located in the production building between the lab and the offices of the engineers and the Manager of Production. She reported to Barry Riddell and the other members of management who had offices close to hers were Tony Sinclair, Rod Shaw, Zenart Dziadyk, a senior engineer, and Ian Glew, whose position she cannot recall. Her office was also close to the offices of Ken Eccles, the HF Plant Supervisor, Ron Coulter, the general foreman, and Ian Elford, the lab foreman.

60Mr. Riddell, who is the highest ranking member of management in her building, initially interviewed her in May 1989. He asked her during the interview if she was planning on having any more children and Ms Muzzin wanted the job so replied in the negative. She could also remember him joking aloud that no women should be paid $16.00 per hour. On one other occasion, she was walking down the hall past a group of men and one of them whom she believes to have been Ken Eccles made comments about her legs and the other men were laughing. She does not remember the exact comment but does recall that she was so upset she went her office and slammed the door. She believes the people present in the group besides Ken Eccles were Barry Riddell, Ron Coulter and Ian Glew.

61Ms Muzzin recalled having quite a lengthy conversation with Ken Eccles and Ron Coulter about why there were no women in the plant. The reasons given were that women could not turn the valves; the second point was that women were generally afraid of heights and they also said that there would be hanky-panky on the night shifts if women were present. They also stated that pregnant women should not be around the chemicals in the plant because of the potential damage that could be done to the fetus.

62Ms Muzzin also recalled being in the back of the building getting ready for a meeting when Mr. Dziadyk told her she should always stay back there to generate body heat. The tone and content of his remark gave offense and so Ms Muzzin wrote him a letter and told him "to knock it off" which he did. A number of other members of management were present at the time but she does not believe that Barry Riddell was one of them.

63She recalls that Mr. Dziadyk made other offensive comments about women. For example, the morning after the shooting of the women students at École Polytechnique in Montreal, he came into the coffee room with quite a number of other people present and said "well, there is eleven less that we have to worry about taking our jobs". Barry Riddell was there on that occasion as were other members of management.

64Ms Muzzin also recalls that there was pornography in the maintenance area of the plant, particularly in the office of one of the maintenance planners. She was required to go into that area just about every day and the pornography was visible. She also recalls that daily management meetings were held in the area but that to her knowledge no objection was ever taken by any member of management to the posting of pornography.

65Ms Muzzin also spoke regularly with Helen Wigle some time in 1990 concerning interviewing of applicants for positions at Allied Chemical:

And she had mentioned that anybody with a Chinese accent, especially, anybody with a heavy accent was not to be called for a second interview because of the fact that in this type of environment, communication is very important and they do not like any kind of language barrier or anything like that. So they do not want anybody that is a little bit hard to understand working there. They do not want anybody with an accent or anything like that. (volume 3, page 173)

She also recalls that the plant used to be visited by an African-American man from Allied Signal in Morristown, New Jersey. She does not know what position he held but believes he was higher up in the company. She recalled that he used to come for meetings but that as soon as he left the room, say to go to the washroom, racist remarks were made about him. She recalls in particular that Ken Eccles made a comment with the word "jigaboo". She could not recall who else was present to hear that remark; nor could she remember specific details of other remarks that were made about the man.

66Ms Muzzin also recalls having Luba Ristic speak to her about Ms Abdolalipour and that she came in one day and was quite upset. Ms Ristic was quite angry because she did not believe that Ms Abdolalipour was doing what she wanted her to do. It was shortly after this that Ms Muzzin had a conversation with Ms Abdolalipour about not seeking help from male co-workers. She told Ms Abdolalipour that she was "really rooting for them to finally hire a women" and noted that Ms Ristic had a reputation of calling up the foreman whenever she "did not want to really try too hard ... to get samples and things like that". Ms Muzzin felt that Ms Ristic's way of acting was effectively working against women as a whole and thus was urging Ms Abdolalipour not to "act like a helpless female".

67Evidence was heard from Mr. Dino Campagna, Co-ordinator of the Chemical Engineering Technology program at St. Clair College in Windsor. He holds an Honours Bachelor of Science degree in Chemistry from Queen's University and a Master of Science degree in Chemistry from the University of Waterloo. He has been in the Co-ordinator's position for approximately 17 years and has been a member of the teaching staff at St. Clair College since 1968. Prior to that he worked for three years in industry and for two years with the Inspection Branch of National Defense in Ottawa.

68Mr. Campagna described in detail the nature and content of the three-year Chemical Engineering Technologist program at St. Clair College. The kinds of jobs that this program prepares students to take after they graduate were stated by him to include quality control laboratories, process industry jobs, middle management positions, production work, technical sales and work in the broader environmental sector. Prior to testifying, Mr. Campagna was provided with a copy of the advertisement that had been placed by Allied Chemical for the chemistry lab analyst position. That advertisement read as follows:

Chemistry Lab Analyst

An experienced lab analyst is required for the Quality Control Labs in our hydrofluoric acid and refrigerant production gas production facilities, located in Southwestern Ontario.

Responsibilities include QA monitoring of process fluids, environmental monitoring and analyses of the finished product. This is a union position and requires shift work.

The ideal candidate will possess an Honours B.Sc. enhanced by a minimum of three years industrial chemical laboratory experience in wet chemistry, gas chromatography, spectroscopy, ion chromatography and S.P.C.

Remuneration includes a rate $20.28/hr with a comprehensive benefits package.

Qualified applicants are invited to apply in confidence to: Human Resources Dept. Allied Chemical Canada P.O. Box 2000 Amherstburg, Ontario N9V 2Z6

Mr. Campagna was also provided with "description of duties" for analysts in each of the three labs at Allied Chemical. Finally, he was provided with letters of application and the résumés of five candidates for the position of Chemical Lab Analyst with any information indicating name, gender, race, colour or ancestry of the candidates deleted. Mr. Campagna was then put forward as an expert witness to review the letters of application and résumés of the five candidates and to rank them relative to the advertisement and job description and to provide an explanation of his ranking on the basis of academic qualifications and work experience disclosed in the resumes.

69Mr. Campagna's suitability as an expert witness was questioned by counsel for the respondents who expressed concern that, whereas he was certainly qualified with respect to the technologists program and its content, he did not have experience in a university academic situation or in the industrial sector or with particular respect to human resources functions. Furthermore, counsel for the respondent noted that, aside from the job advertisement, he had indicated that he was not aware of the particular circumstances of Allied Chemical.

70After hearing argument, I concluded that Mr. Campagna was qualified to give evidence and noted the following statement by the Board of Inquiry in Shaw v. Levac Supply Limited (1991) 1990 CanLII 12451 (ON HRT), 14 C.H.R.R. D/36 at D/60 (para. 180):

In any case, in respect of the hearing under the Code I find more apt the view that the "hallmark of admissibility simply should be whether the expert's testimony would be helpful to the tribunal". (The Law of Evidence in Civil Cases, p.308) Under s.15 of the Statutory Powers Procedure Act [R.S.O. 1980, c. 484] of Ontario the Tribunal may admit any oral testimony provided it considers it relevant. The evidence of Mr. Astrachan was relevant and since it appeared likely to prove helpful to me I concluded that he should be qualified as an expert and his testimony admitted and given such weight as in the end it might appear to warrant.

In agreeing to hear Mr. Campagna's evidence, I made the point that it is frequently difficult to know in advance, when sitting as a Board of Inquiry in a Human Rights case, whether the proposed expert's testimony will prove to be helpful. Consequently, in applying the standard set out in the Shaw case, I took the view that "in the absence of a conviction or even a clear indication that the evidence would be unhelpful, that if there is what I would describe as a prima facie foundation for believing that the witness may be helpful, in others words that by his or her qualifications and by the general context of the issues before the Board it appears that they will be helpful, then the tests should be reasonably satisfied and we will leave for argument and obviously the balancing of other evidence, the question of how much weight should be attached to it" (transcript volume 4, p.15.)

71Mr. Campagna ranked the five candidates for the job of Chemistry Lab Analyst in the following order: 1) Raed Murad 2) Robert Hand 3) Masumeh Abdolalipour 4) James Petty 5) Chris Kotevich. Mr. Campagna ranked Mr. Murad ahead of Mr. Hand because he had a three-year diploma from the Chemical Engineering Technology Program at St. Clair College as well as the Bachelor of Science degree in Chemical Engineering from Wayne State University whereas Mr. Hand had a two-year diploma from Mohawk College prior to obtaining his Honours Bachelor of Science degree from Guelph University. Furthermore, Mr. Murad's work experience appeared to be greater in the field of chemical analysis; Mr. Hand's year of experience in an international paint company in Toronto appeared to involve formulation, or the putting together of ingredients to create a final product, rather than chemical analysis. Mr. Campagna ranked Ms Abdolalipour's candidacy ahead of that of James Petty because she holds an Honours Bachelor of Science degree and had the six months of contract experience at the Harrow Research Station and the research assistantship at McGill University. Mr. Petty's Bachelor of Science degree was a general degree and therefore involved one year's less study and he had less relevant work experience.

72Finally, Mr. Campagna noted that Chris Kotevich holds a General degree in Biology and a General degree in Geography, neither of which are related to the study of chemistry nor appear to involve any courses in analytical chemistry. In addition, his only relevant work experience was two to three months at Allied Chemical.

73In cross-examination Mr. Campagna was asked by counsel for the respondent whether in his opinion Mr. Murad was over-qualified for the position of Chemical Lab Analyst. He replied that with a combination of a chemical engineering degree and chemical engineering technologist diploma a person could start off in the lab or in the plant. A chemical technologist takes courses in both chemistry and engineering but is more oriented towards chemistry and chemical analysis in particular. A chemical engineer is trained more in chemical processes and might be expected to be interested in process design and its efficient implementation and operation. He further noted that many people who are hired in the chemical industry start off in a lab environment because the can acquire basic knowledge about the processes in which a company is engaged and the products it produces; however he stated that it is not often that someone who starts with a company in a laboratory remains there for many years. Consequently he agreed that Mr. Murad's career objectives as stated on his résumé, requiring "a career of challenge and growth in chemical engineering", would be a future objective but would not be consistent with him remaining in a position of lab analyst.

74Bill Anderson testified that he was first approached by Masumeh Abdolalipour shortly after she was let go by the company. He was then union plant chairperson, one of several positions he had held with the union during his 23 years at Allied Chemical. The concerns expressed to him by the complainant lead him to hold a meeting with John Sweezey, the Human Resources Manager, within a couple of days. He recalls discussing with Mr. Sweezey the apparent problem of giving women seniority at Allied Chemical and Mr. Sweezey responded that Ms Abdolalipour was reported by her foreman as not following directions properly. Mr. Anderson followed this up and the only response he received, either from Mr. Sweezey or Mr. Elford, was that Ms Abdolalipour was carrying her analysis a step further than required.

75Mr. Sweezey also said to him that Ms Abdolalipour did not get along with some of the employees but did not specify who those were. He also does not recall any other concerns expressed either by Mr. Sweezey or by Mr. Elford in his meeting with him. He believes that he specifically asked Mr. Elford whether Ms Abdolalipour was being prevented from getting all the work done because she was carrying some of the lab tests further than she had been directed and his response was that she was getting the work done fine. Mr. Elford also stated that he had no control over who the company was going to hire or let go.

76Mr. Anderson followed up his meeting with Mr. Sweezey with a letter dated November 29, 1991. The letter expressed concern that women had only been hired in the laboratories on a temporary basis and stated that these temporary women employees were not given proper consideration when the positions were filled permanently even though they were performing the jobs adequately and were qualified to fill them. The letter also noted the absence of visible minorities hired by the company in permanent positions which "flies in the face of our (CAW Union's) employment equity policies and is also contrary to Allied Signal's equal employment policy".

77Mr. Anderson also recalls raising the point with Mr. Sweezey at one of the last meetings which he held with him in his office. Specifically he noted that only Caucasians appeared to be working in the plant and said that he raised the matter because he was worried that the lack of persons of colour in the workforce would cause trouble and he wanted to cover himself. He recalls that one response he received from Mr. Sweezey was that, to his knowledge, there had been no persons of colour who had applied for full-time jobs. Mr. Anderson stated that it was not visible to him that any steps were being taken by Allied Chemical generally or by Mr. Sweezey in particular to implement the company's employment equity policy.

78Mr. Anderson also recalls discussing the matter at least twice with Pierre Dagenais, the maintenance manager. Discussions with Mr. Dagenais focussed on the fact that there were no visible minorities in the plant and virtually no women working there other than in clerical positions. Mr. Dagenais' response was that he had extensive experience in different plants prior to working at Allied Chemical and he "could not believe it either".

79Mr. Anderson also described the circumstances leading to the split between General Chemical and Allied Chemical in 1986. Prior to the split, the corporate organization of Allied Signal was such that all Allied Chemical workers were employees of General Chemical working under a service agreement with General Chemical. It was subsequently determined that Allied Chemical should have its own employees so an agreement was reached between Allied Chemicals, General Chemicals and Local 89 of the Canadian Auto Workers Union according to which Allied Chemical would post the jobs it wanted to fill in the HF and Genetron plants. Anyone wishing to be employed by Allied Chemical could therefore bid on those jobs and the determination would be made based on qualifications for the job posted and seniority. -These were the circumstances under which Luba Ristic became re-employed by Allied Chemical as she bid-on a lab analysts job and obtained it because of her seniority and qualifications. According to Mr. Anderson, there was no decision to be made by management at Allied Chemical to hire Ms Ristic into the lab analyst position because she had the contractual right to take the position in light of her qualifications and seniority. To Mr. Anderson's knowledge, other than employees of General Chemical who were able to bid into Allied Chemical positions, there had been no members of visible or racial minorities hired into a permanent position at Allied Chemical since the split with General Chemical occurred in 1986. In addition, no women had been hired into a non-clerical position at Allied Chemicals since the split.

80Mr. Anderson also testified about a discussion he had with Mr. Sweezey concerning student jobs. In particular he recalled following up with Mr. Sweezey on behalf of a unionized worker who was hoping that his daughter might be able to obtain one of the jobs available. She had applied previously without being hired. Mr. Sweezey's reply was there were no "female jobs" available. When asked to define what he meant by "female jobs" Mr. Sweezey said that female students could be allowed to work as janitors or cleaners in certain parts of the plant but not in plant process jobs or in Genetron Packaging because these were "male jobs". Mr. Anderson recalls having this conversation with Mr. Sweezey in the summer of 1991 and stated that Mr. Sweezey explained that women could not be allowed to work at Genetron Packaging because of the lifting required. He also stated that there was a long held perception among the work force at the plant that the company was afraid to allow women to work in the Genetron plant because the chemicals used there might cause damage to a fetus being carried by a pregnant women.

81The company and the union were engaged in contract negotiations for a period of months in 1990-91. During those negotiations, Mr. Anderson testified that one of the goals of the union was to achieve pay equity. During the course of negotiations over the table, he recalls the plant manager stating that women were all second income earners anyway and "did not even deserve what they were getting now". The plant manager, Roger Booth, now retired was then Mr. Riddell's immediate supervisor.

82Mr. Anderson also confirmed that there were pictures of nudes on the inside of the bathroom door in the operations facility in the HF Plant during the spring and summer of 1991. He believes that management must of been aware that the pornography was posted there and, while he recalls the directive being issued stating that pornography was not to be posted, he is not aware that any bargaining unit member was ever disciplined or reprimanded for posting pornography in the plant.

83In cross-examination Mr. Anderson was asked about a strike which ran from December 1990 to April 1991. He described the strike as being quite bitter at times with police present on a daily basis. Mr. Riddell was responsible for organizing the management teams who were working to maintain the plant facilities during the strike. During the strike there were various altercations and criminal charges were laid. Mr. Riddell was charged with assault and he in turn laid assault charges. Once the strike was concluded, the charges were withdrawn except for the ones Mr. Riddell had laid himself. There was also some damage done to Mr. Riddell's boat during the strike but Mr. Anderson had no idea who had caused the damage. He agreed that there was considerable animosity towards Mr. Riddell during the strike but he did not believe that this animosity continued after the strike was over and described himself as having a professional relationship with him.

84James Petty graduated with a General Bachelor of Science degree in Chemistry from Brock University in 1989 and then entered the military as an Armour Officer. He stayed in this position, which did not involve any chemistry or lab work, for approximately a year and a half. He responded to a job advertisement for the Chemistry Lab Analyst position, virtually identical to the one already set out above, that was printed in the Toronto Star newspaper on May 2, 1991. He responded by sending his résumé together with a covering letter that was received by the Human Resources Department at Allied Chemical on May 7, 1991.

85Originally he was interviewed by Ian Elford and then, on a second occasion, by Rod Shaw and then by Barry Riddell. During his interview with Barry Riddell he recalls Mr. Riddell saying that women were usually not hired because the job was physically difficult. This comment arose in the context of a discussion about Mr. Petty's knee which he had hurt during his time in the military. He agreed, in cross-examination, that Mr. Riddell attempted during the interview to describe the working environment so that Mr. Petty would be sure of what he was getting into. He agreed that it was fair to say that Mr. Riddell did not want him to be surprised about some aspects of the job. He was asked whether his observation of women being employed in the lab was inconsistent with the comment Mr. Riddell had made during his interview. He responded that this was true in some respects but the fact that Luba Ristic did not perform a physically demanding job also bore out Mr. Riddell's comment. He agreed that the HF Wet Lab was more physically demanding than Genetron. He also recalls that Sandra De Groot was hired after he started at Allied and that there was another female temporary employee whose name he could not recall and who only stayed about two days.

86Ms De Groot obtained a three-year diploma from St. Clair College in Food Engineering Processing Technology and thereafter worked at the Nabisco Brand plant in Leamington for six years until it closed. For the first year she worked as Quality Assurance Technologist and was then promoted in her second year to Quality Control Supervisor, a position she held until plant closure. Her role as Quality Control Supervisor involved supervising a staff of about ten people in the lab, taking care of sanitation issues and taking correction action with respect to defective products. She then went to the Nestle plant in Wallaceburg as a Quality Assurance Technician and stayed there for only about four months before starting at Allied Chemical as a Chemical Technologist. She worked at Allied Chemical for almost three months before being laid off. Since leaving Allied Chemical, she has worked as a Quality Assurance Technologist and Head of Research and Development at Canadian Blending and Processing.

87Ms De Groot testified that while she was working at Allied Chemicals she was told by plant workers that although she was doing a good job and got along with everybody she would unfortunately not be hired because she was female. She did not recall who specifically had made these comments but said that it was a widely expressed view. She also heard concerns expressed over the prospect of women working in the Genetron plant because of potential damage to their reproductive organs through exposure to chemicals.

88Ms De Groot was also aware of pornography posted in the control room on the washroom door. When the door was open, she could see it and felt that, because she did not appear let it bother her, the men decided they would not want to expose her to it and would therefore close the door she would not have to see it. During her shifts she would be required to go into the control room about four times and apart from her work responsibilities she would typically take her break there.

89Ms De Groot contrasted her situation with that of Ms Abdolalipour who was recognized as someone who became quite upset by the display of pornography. Some of the male employees told Ms De Groot that they purposefully made the pornography visible to her by leaving the door open when they knew she would be around because they knew it would upset her.

90Ms De Groot also filed a complaint with the Human Rights Commission because she felt she had done a good job and that she had been promised a job on a permanent basis if she performed well. She stated that she did a good job, never turned down overtime and did not even get an interview. The decision was made not to proceed with the complaint because Ms De Groot did not have the formal qualifications that were listed in the advertisement and this was the reason Allied Chemical had given as to why she could not. have the job. Ms De Groot emphasized that she had focussed on the possibility of a permanent job at Allied Chemical because she had just acquired her seniority at Nestle when Helen Wigle contacted her. Therefore, when Helen Wigle asked if she would accept a temporary position she specifically inquired about full-time prospects and testified that she was told the job would become full-time "if you do a good job". She therefore took a chance because the Allied Chemical position looked promising and started the next working day after the last weekend in August 1991.

91Ms De Groot was laid off on November 23, 1991 and recalls having a telephone conversation with Ms Abdolalipour about that time. During that conversation Ms Abdolalipour expressed the view that Allied was not being fair and not hiring women and that perhaps they should proceed with the complaint together. Ms De Groot agreed that it would be better to have two people launch a complaint than to do so individually and she subsequently telephoned Mr. Anderson at his office at Allied Chemical to advise them of their intentions. She questioned with Mr. Anderson whether the union should be involved because she and Ms Abdolalipour had paid union dues although they did not yet have status as union members. Mr. Anderson indicated that they could not get direct support because they did not have union seniority but he agreed to try to assist them in future if they needed advice. She recalls him indicating specifically that he thought there was a problem at Allied Chemical with the hiring of women and minorities and that this was because of Mr. Riddell's views. There was then a meeting at the union hall on December 2, 1991 attended by Mr. Murad, Ms Abdolalipour, Ms De Groot and some union officials who confirmed that they did not have the authority to advance the complainants cause and that they would have to seek redress through the Human Rights Commission.

92Ms Christine Antaya-Chan was not able to be physically present at the hearing but her affidavit of June 15, 1994 was entered and she was cross-examined on the affidavit by conference telephone. She was employed at Allied Chemical as a temporary lab analyst from August through November 1989 and from November 1989 until December 1989 she was employed on contract in the environmental lab.

93While Ms Antaya-Chan was working in the environmental lab, permanent lab analyst positions became available in the production lab. According to her affidavit, she expressed interest in a permanent position directly to Barry Riddell several times in writing; however, she was not granted an interview for the permanent lab analyst positions. She told by Barry Boghean, the lab supervisor at that time, that her chemistry was not "up to snuff".

94She was interviewed by Mr. Riddell for the contract position in the environmental lab. During the interview, Mr. Riddell asked if she was going to have anymore children and when she responded "no" Mr. Riddell asked, "how can I be sure of that?".

95While she was working in the contract position in the environmental lab, Ms. Antaya-Chan performed work identical to that being done by a permanent employee name Rob. During the period of her contract, Rob advised the company that he would be leaving for Vancouver. Ms Antaya-Chan spoke to her supervisor about the permanent position but again was never given an interview.

96Prior to working at Allied Chemical, Ms Antaya-Chan worked at Esso Chemicals Canada in Sarnia as a Chemical Technician from 1988-89. She describes her duties in that position as similar to those of a lab analyst at Allied Chemical except that a lot more instrumentation was involved at Esso. In 1988 she received a diploma in Science Laboratory Technology from Fanshawe College in London, Ontario and had worked in 1987 as a co-op student at Ortech International in Mississauga as an Environmental Technician performing work which was very similar to that which she had in the environmental lab at Allied Chemical. In 1986 she had worked for Proctor & Redfern Consulting Engineers doing wet chemistry which she described in her affidavit as very similar to the work she did as a lab analyst at Allied Chemicals.

97Since leaving Allied Chemical, Ms Antaya-Chan worked in a contract position at Lambton Generating Station as a chemical technician doing quality control work and environmental sampling. She worked there from January to June 1991. Since July 2, 1991, she has been employed by Ontario Hydro as a chemical technician at the Bruce Nuclear Power Plant during radiological work.

98In cross-examination, Ms Antaya-Chan was asked if she thought that Mr. Riddell was joking when he asked how he could be sure that she was not going to have any more children. She replied that at the time she was angry but could not say looking back, whether it was an attempt at joking or not. She described the rest of her interview with Mr. Riddell as "very pleasant". She also described the working environment at Allied as very enjoyable.

99In re-examination Ms Antaya-Chan described herself as white and being of French ancestry. She also mentioned that outside of work she was dating Ian Elford but stopped dating him sometime after her contract ended.

100Mr. Chris McKinnon, the Human Rights Officer assigned to investigate the complaints of Mr. Murad and Ms Abdolalipour, was also called to testify. As part of his responsibilities he reviewed the employee files at Allied Chemical and found a document entitled "Parameters for Hiring Summer Students". At the bottom of that-document was a type-written note: "all females are kept in M & C and qualified people are needed for lab and technical positions". M & C stands for Maintenance and Construction which Mr. McKinnon understood to include routine maintenance and painting around the plant.

101Ms Shahnaz-Khan is a self-employed consultant/counsellor and a Ph.D. student at the Ontario Institute for Studies in Education. She holds Bachelors and Masters degrees in Fine Arts from Punjab University in Pakistan and a Masters degree in Educational Counselling from the University of Ottawa where her research focus was on "Intercultural Communication and the Effects of Being a Minority in Canada". The research focus of her Ph.D. is "Race, Class, Gender, and Religion: Muslim Women in Canada". She also instructs a course entitled "Perspectives on Gender" in the Women's Studies program at York University. Her consulting and community work frequently relates to issues of racism and sexism in the work place. Groups with which she has consulted include Ontario Hydro, The Ministry of the Solicitor-General, and the Women's Counselling Referral and Education Centre. Her curriculum vitae reveals that she has previously served as an expert witness to the Ontario Human Rights Commission. Counsel for the Respondent chose not to challenge the admission of Ms Khan as an expert in light of my earlier ruling regarding Mr. Campagna and I therefore accepted her qualifications as an expert witness on the impact of racism or sexism on women and persons of colour.

102Ms Khan tendered a 22 page report entitled "Exclusionary and Discriminatory Practices and Attitudes at Allied Chemical, and Their Effect on Masumeh Abdolalipour and Raed Murad". She also provided, in addition to a summary of her professional and academic background, copies of four articles: Homi Bhabha, "The Other Question: Difference, Discrimination, and the Discourse of Colonialism"; Amy Gottlieb, "Not in My Name: A Jewish Feminist Challenges Loyalty to Israel"; Clive Audre Loedre, "Age, Race, Class & Sex: Women Redefining Difference"; and Gayatri Speivak, "Marginality in the Teaching Machine". I will say more about these materials later but for the moment 1 observe that, however interesting I may have found them, they were not of great utility in helping me discharge my responsibilities in this case.

103Counsel for the Ontario Human Rights Commission asked Ms Khan how she would define racism. She noted that direct racial slurs were uncommon. The more common form of racism, in her view, is the subtle exclusion, devaluating or denigration that occurs when certain assumptions are fed into systems or institutions and "inform the culture of those environments".

104Thus, in the hiring process, where recruitment takes place through personal networking, the fact that those doing the recruiting may not mix with other racial groups makes it much more likely that they will put the word out only among members of their own group. Or, questions on application forms may be irrelevant to the job and also irrelevant to applicants with particular backgrounds; such questions on an application form would serve as a screen. Somebody with an accent, where the job does not even require idiomatically correct English, may be screened out because a connection may be made between speaking English properly and intelligence. A person's name may cause interviewers to wonder whether they would be comfortable with the person and certain types of camaraderie during the interview could be exclusionary depending on the background of the person being interviewed.

105Ms Khan emphasized that, in her view, people are not born racists but learn racism so that it becomes part of the everyday assumptions they carry around with them. It is her conviction that "unless these assumptions and biases are examined, systematically examined and unlearned, they will inform subjective evaluation processes". Those who have not "unlearned" this socialized racism, according to Ms Khan, would not be expected to be aware of the racial bias inherent in their evaluations of applicants or employees because they would be doing what they construed to be normal.

106Ms Khan was also asked to describe how a racial minority employee would be affected by an otherwise homogeneous management and workforce in the work place. She stated that the first effect of a racially homogeneous work place is that their is nobody there to challenge unexamined, subjective biases about what are normal and acceptable standards. This means that the institutional culture remains the same. The effect on the member of the minority group, or as Ms Khan describes, "the other", is "massive exclusion, not only from the management, but also ... from within the work place culture". (transcript volume 5, page 48).

107Beyond these general observations, which are supported in the results of published studies as well as through some of the evidence of the Complainants themselves, much of the rest of Ms Khan's opinion evidence was less obviously pertinent. Much of it appeared to me to involve a high level of conjecture or a degree of extrapolation that made it only marginally useful to evaluating the complaints before me. By way of illustrating the difficulty I have had in weighing this evidence, I cite the following extensive passage from Ms Khan's examination-in-chief by counsel for the Ontario Human Rights Commission:

Q. Now, having spoken with Masumeh Abdolalipour and from your understanding of her origins and background, to what group would she be perceived to belong to the general population of white Canadians?

A. Well, she would be Muslim, and I know she is not Arab, but then because of the popular equation she would be Muslim/Arab/Terrorist.

Q. Okay. And having met Mr. Murad, and from your understanding of his ancestry and background, to what group would he be perceived to belong by the general population of white Canadians?

A. Well, he is not Muslim, but because he is Arab, he would be Arab/Muslim/Palestinian/Really Bad Terrorist.

Q. Okay. And I think you have anticipated my next question, which is, what popular myths or stereotypes are associated with Arab Muslims, and you have mentioned the terrorist myth. Is there any other myths or stereotypes perceived?

A. Well the terrorist myth is a very recent myth. It has got this whole history behind it, in terms of the fear of the infidel, and you know, the crusades and how, you know, the Holy places had to be defended. There is a whole slew of literature.

If you look at Hourani's work, it is a whole -- he identifies all this literature about Houdanyi found in hell and, you know, the Prophet Mohammed and the worst place for Arabs and Muslims to be because, you know, they are the most evil and they have taken over the Holy place, and this is in all the literature, which informs popular opinions.

And people might say, "Well, what has that got to do with us?" but popular opinion is informed within classical canons, through classical canons, which is the literature that people refer to.

That is part of the myth. The second part of it has to do with colonization. It has to do with turning the colonial subject into the deviant, the backward, the less progressive, the one that needs to be civilized, the weak and the effeminate. Even the men are effeminate because they need to be colonized and protected. That is the second part.

So you are talking about how Masumeh would be perceived. Right? She would be perceived as a terrorist on the one hand, in a contradictory way, and on the other hand as sexualized, because she is part of the effeminate colonial.

Q. Okay. My question was actually addressing both.

A. Well both would be, but the women would be more. (transcript, volume 5, pages 48-50)

108I found Ms Khan's description of sexism and its effects to be more readily applicable to the circumstances described by prior witnesses. She relates sexism primarily to the devaluation of women and, in the work place, keeping women in what she described as "ghettos", for example, clerical or maintenance work. She also referred to sexism's effect of "treating their work as second incomes, not giving them the primary responsibility, not treating them as professionals, treating them as sexualized beings... their bodies are more important than any work that they do". In her view, the visible minority women is doubly disadvantaged in a very male-dominated work place both because she is a women and because she is not white. Ms Khan also referred to the concept of "multiple location". She described the person at a multiple location as one who is at once advantaged and disadvantaged and gave as the primary example a white women in a dominant white male environment. According to Ms Khan, it is important for women in such a position to acknowledge their privilege while at the same time realizing that they are discriminated against. This is to avoid the double bind that Ms Khan believes is created for women in a sexualized male environment: on the one hand they need to collude and to maintain the status quo to get ahead; on the other hand, they run the risk of closing their eyes to their own privileged position and perpetuating problems for younger women or women from a racial minority.

109It is clear that the impact of the posting of pornography in the work place can affect how women are perceived by their male counterparts and on their own experience. To the extent the posting of pornography affirms the view of women as sexualized beings, that becomes a norm whether women like it or not. If women themselves see that their male coworkers are perceiving them first as sexualized beings and not as professionals, it is difficult for them to know how to interact and they may feel that it is not safe to open up or be friendly because they will not know what to expect in return. The difficulties felt by women workers in such an environment must reasonably be expected to be greater if their traditional cultural backgrounds would not consider such images to be acceptable in a work environment.

110Ms Khan was shown the following profile of the workforce in the bargaining unit at Allied Chemical by job description:

Appendix 1

Category	Total Number	Number of Women	Number of Visible Minorities
H.F.Operators H.F. Assistant Operators	9 9	0 0	0 0
H.F. Tank Farm Repair	1	0	0
Genetron Operators	6	0	0
Genetron Packaging	4	0	0
Pipefitters	7	0	0
Field Repair	6	0	0
Welder	1	0	0
General Labourer	2	0	0
M & C Lubricator	1	0	0
Insulator	1	0	0
Electrician	2	0	0
Instrument Repair	2	0	0
Safety Person	1	0	0
Laboratory Analysts	8	1	0
Clerical	8	7	0

After noting that all women employees were in clerical positions with the exception of one laboratory analyst, Ms Khan referred to figures reported by Statistics Canada in 1991. According to those figures, a higher percentage of visible minorities in the Windsor area possess Bachelor's degrees than the population as a whole -- 12.8% versus 5% respectively.

111Ms Khan was asked to assume a hiring process in which initial screening of resumes is done by the Human Resources Department; three white male management personnel then establish a short list of candidates to be interviewed; separate one-on-one interviews are then held between the applicant and two of the management personnel to assess the applicant's technical abilities and qualifications; the two management personnel consult to determine which candidates proceed to a final one-on-one interview with the third and most senior management person; the successful candidate is then selected by consultation among the three management personnel. Ms Khan's view is that unless the three management personnel had received cross-cultural diversity or gender sensitivity training and conducted the interviews according to a structured format, they would be operating with a lot of assumptions and biases.

112Ms Khan was then presented with several assumed expressed attitudes towards women in the work place and asked to describe the extent to which the assumed attitude reflected a stereotype about women or was an indicator of sexism. The first attitude is that the work is too physically demanding for women. According to Ms Khan, this attitude portrays women as weak and more like children rather than individual adults capable of making rational choices about what they were physically capable of doing. The same would be true about an attitude that women are not capable of dealing with heights. The attitudes of management concerned about the impact of certain chemicals on women of child-bearing years is one which, if supported by valid scientific research, Ms Khan believes should be brought out into the open. She referred to increasing criticism of some allegedly scientific research that have built-in biases toward the view that women are vulnerable and fragile. She also raised the question of whether women who decided they did not want to have children should have the opportunity of assuming a risk that was clearly presented to them.

113The final assumed attitude presented to Ms Khan was management's concern about "hanky-panky" on the night shift if women are working. Ms Khan questioned why such activity, if it was likely to occur, would lead to women being penalized in particular. Her more significant criticism, however, was the underlying view of women as essentially sexual beings and not professionals.

114Counsel for the Commission also put another hypothetical question to Ms Khan. The first assumed a male-dominated and racially homogeneous workforce where a women from a racial and cultural minority was commencing employment as a temporary employee. The further assumption was that in the area where the temporary employee was working was a white women who had been employed for some time as a permanent employee and who soon after the temporary employee started, reacted to her in a hostile and belittling manner. Ms Khan was further asked to assume that the temporary employee responded by saying that she wanted to be left alone, causing the permanent women employee to become angry and to report the incident to her supervisor. Finally, Ms Khan was asked to assume that the supervisor, a white male, never discussed the issue with the temporary employee but later relied on the incident in deciding not to recommend her for a permanent position. Ms Khan was asked how in her opinion racism and/or sexism could be implicated from the different perspectives of the temporary employee, the permanent female employee and the white male supervisor.

115The temporary employee would have little option other than to say she wants to be left alone. She has no permanent job but knows that the older women does and has been there a long time. The only way to avoid hostility is for her to retreat into a professional role and to take direction only from her own supervisor. The permanent female employee is likely to be in a much more powerful position because she has colluded with a sexist environment and is helping to maintain it. The white male supervisor, according to Ms Khan's evaluation, has effectively constructed her as a child because she is a women from a racial minority and therefore particularly different from the predominantly white male workforce. He appears already to have decided that she is to blame by not discussing the incident with her and has made up his mind without even talking to her about it. Ms Khan also suggested that if the white male supervisor was to recommend the temporary women employee, he might stand to be ostracized for overturning the status quo by hiring somebody that does not fit with the larger workplace culture.

116Ultimately, the examples adduced by Ms Khan identify the features of an institutional or work place culture that is intolerant of difference. While testifying, she spoke of conversations she had with Ms Abdolalipour and Mr. Murad. Ms Khan was asked to comment on the experience which both complainants had at Allied Chemical and the impact of that experience on them; however, given that they each testified on these issues, it is sufficient and perhaps most appropriate to observe only that Ms Khan's descriptions tend to confirm the evidence given by both complainants. I make much the same observation about the report prepared by Ms Khan entered as an exhibit by the Commission: to the extent that her report relates what was said to her in conversation by persons who have appeared as witnesses, I prefer the direct testimony of these witnesses rather than the text of statements and opinions attributed to them in Ms Khan's report.

117I also wish to comment further on the supplementary materials provided with Ms Khan's report. I have read them carefully, and not without interest, but I would make two observations in addition to those made earlier in the first place, these writings are so personal and experiential that I find little obvious basis for translating them in a way that usefully applies to the circumstances of this case. A second and related point is that the text of these pieces is frequently so dense as to be cryptic at best and inscrutable at worst. By way of example, I quote the introductory paragraph from Homi's "The Other Question: Difference, Discrimination, and the Discourse of Colonialism":

The genesis of this essay is diverse and discontinuous; its long march of critical contestation tracks my attempts to clear a space for the "other" question. To pose the colonial question is to realize that the problematic representation of cultural and racial difference cannot simply be read off from the signs and designs of social authority that are produced in the analyses of Class and gender differentiation. As I was writing in 1982, the conceptual boundaries of the West were being busily reinscribed in a clamor of counter-texts -- transgressive, semiotic, semianalytic, deconstructionist -- none of which pushed those boundaries to their colonial periphery; to that limit where the West must face a peculiarly displaced and decentred image of itself "in double-duty bound, " at once a civilizing mission and a violent subjugating force. It is there, in the colonial margin, that the culture of the West reveals its difference, its limit-text as its practice of authority displays an ambivalence that is one of the most significant discursive and psychical strategies of discriminatory power -- whether racist or sexist, peripheral or metropolitan.

I will only observe particularly in light of the time I taken to examine these materials, that I have read other works to greater profit.

118The final hypothetical scenario that was presented to Ms Khan was that of a racially homogeneous work environment in which a racial minority male was working as a temporary employee and whose work has been evaluated as excellent. The further details under this hypothetical scenario were that the temporary employee expresses interest in a permanent position that has become available but is not interviewed. Meanwhile the two successful candidates are both white males, one of them is much less qualified than he and had been working as a temporary employee under a white male supervisor of the company. The other candidate is slightly older and is assessed by management as having leadership potential. Finally, the reason given by management for not interviewing the racial minority employee is that the career objective on his résumé is incompatible with the position applied for. Ms Khan's response was that if the interview process had not been screened for biases -- for example, about the Arab/Muslim/Palestinian/ constructed as weak or less civilized or even as a terrorist -- then they could certainly operate to the determent of a temporary employee. Furthermore, a weak candidate from a "less civilized" nation or culture could well be seen as not possibly having leadership potential, particularly if the qualities by which leadership is assessed are not identified or documented.

119Ms Khan made frequent reference to the need to "unlearn" the biases and perceptions she believe underpinned broadly held racist attitudes. In her view, such unlearning is unlikely to occur through social interaction with, say, members of visible minority groups or with women. Indeed, even formalized sensitivity training may not be sufficient because she see this unlearning process as inevitably painful and traumatic because of the challenge that must take place to basic assumptions and commonly held beliefs. In cross-examination, in the context of being asked whether there was any indication that Luba Ristic held racist popular beliefs, Ms Khan replied:

I have no reason to believe that she did not because the -- let me put it this way. If you go through the school system and you watch television, you hear -- you read the papers and you have not critically examined, and there are people, a lot of people who have done that, their own assumptions, there is no reason to believe that she has unlearned what she has, in fact, learned in her childhood, because racism is a learned behaviour.

It is Ms Khan's apparent belief that everyone raised in this society and exposed to the school system and the broadcast media holds racist beliefs and attitudes unless they have gone through the process of painful, critical examination or unlearning. I do not accept this view, which I believe to be overstated and which fails to recognize that there are effective counters to the development of racist attitudes and beliefs.

120Helen Wigle was the first witness called by counsel for the respondents. She started t work at Allied Chemical in November, 1978 and, after obtaining seniority worked in various clerical positions in the plant. In January 1986 she bid in on a full-time secretarial position in the operations department and, when the split occurred, she joined the new Allied Chemicals as the confidential Secretary/Human Resources Assistant. She has held that position since October 1987. Most of her time is spent on human relations functions and reports for the plant manager. At the time she started the manager was Mr. Robert Baracat who is of Egyptian origin. After Mr. Baracat came Roger Booth and after Roger Booth came Barry Riddell. Ms Wigle testified that neither of these men said or did anything which would indicate a racist or sexist bias on their part.

121On the human resource side, Ms Wigle reported to John Sweezey. Part of her responsibilities had to do with the hiring of summer students. The jobs that they were offered included Genetron packaging, maintenance and construction which included janitorial duties and painting and a position running errands. There were also a safety position and various lab jobs that had to be filled.

122Ms Wigle was asked about the notation on the document establishing the parameters for hiring summer students which stated that all females were to be kept in maintenance and construction. She explained that women of childbearing years were not to be put in the Genetron packaging plant because of a study that had been done. She recalled that the results of the study were inconclusive but that cancerous tumours had apparently been found in laboratory animals. She had been told this by Gary Towers and John Sweezey but she did not actually see any medical reports. The only document she recalls seeing was a memo which referred to the study having been conducted but she did not have a copy.

123Ms Wigle was asked to compare two documents she had prepared, one listing female lab employees since April 1989 and dated December 2, 1991 and the other listing male lab temporary employees since April 1989 dated December 3, 1991, with the list of temporary employees since 1990 prepared by Mr. McKinnon, the Human Rights Officer. Mr. McKinnon's list did not contain the names of temporary lab employees. According to the records compiled by Ms Wigle, seven women were hired into temporary lab analyst positions and twelve men.

124Ms Wigle does not recall the specific conversations she had with Mr. Murad and Ms Abdolalipour although she recalls having dealings with them when they were hired. She confirmed that clock card numbers for temporary employees were normally in the 5000 series and that she had made a mistake in assigning Ms Abdolalipour an 8000 number. She only became aware that Ms Abdolalipour had an 8000 series code number about one month before testifying.

125Ms Wigle denied ever discussing Human Resource practices or policies with Maureen Muzzin because they were confidential. Nor did she recall having conversations with Ms Muzzin concerning racism or sexism at Allied Chemical. She was never provided with information either by management or bargaining unit employees as to why women could not work as lab analysts nor was any concern expressed to her about employing people with accents at Allied Chemical. She also identified one women, Magda Selmeci, as having been in a management position as controller at Allied Chemical. She further identified Sam Jean, a person of Chinese ancestry, who had been employed at Allied Chemical as an accounting supervisor.

126Ms Wigle confirmed that the company did not advertise for temporary lab analyst positions; instead they were able to keep a bank of résumés which came in more or less continuously. Advertisements were always placed for permanent lab analyst positions. A large number of résumés would typically be submitted in response to the ads so Ms Wigle would not go back through the back of files and look for candidates. However, she stated that if she became aware of a candidate who was interested in a permanent position and who met the necessary qualifications then she would refer that candidate for consideration. The two criteria that she would look for in deciding which résumés to pass on were an Honours Bachelor of Science in an area related to Chemistry and three years of relevant work experience. If she was not sure whether a candidate's qualifications met those criteria, she would send that candidate's résumé through. The job advertisement specifically asked for an Honours Bachelor of Science degree and Ms Wigle understood when she was screening the applications that the four-year Honours B.Sc. program qualification is what she was to look for. However, when asked to turn her attention to James Petty's application for a permanent lab analyst position and the fact he had a three-year general Bachelor of Science degree in Chemistry, she agreed that she had passed his resume along without checking whether he had an Honours degree. In this case, the specific focus on Chemistry would have caused her to pass the résumé along.

127In reviewing the application of Chris Kotevich, whose résumé shows a general Bachelor of Arts degree in Geography and a general Bachelor of Science degree in Biology, Ms Wigle agreed that even if a candidate held only a general Bachelor of Science degree and even if it did not appear that the major field of study was particularly related to chemistry she would generally screen the candidate through and leave the decision to Mr. Elford or others up the chain. Ms Abdolalipour's letter of application was received by Allied Chemical on October 16, 1990. Upon reviewing her qualifications, Ms Wigle was prompted to call her about the temporary lab analyst position which Ms Abdolalipour started on April 4, 1991. On May 2, 1991, Allied Chemical placed a newspaper advertisement for a permanent lab analyst. Ms Wigle thinks it unlikely that Ms Abdolalipour's application and résumé were forwarded to Ian Elford for consideration because she typically would not have gone back into the files. Although she was aware in early April, 1991 that Ms Abdolalipour was starting employment at Allied Chemical and had a Bachelor of Science degree in Agricultural Chemistry and experience at the Harrow Agricultural Station, Ms Wigle felt the onus would be on Ms Abdolalipour to pursue the permanent lab analyst position. Her feeling was that if someone took a job as a temporary lab analyst and did well, that person would be in a good position to succeed to a permanent job opening.

128A second newspaper advertisement for a permanent lab analyst position appeared on August 21, 1991. As with the May 2 job advertisement, Ms Wigle would have been aware that the position was to become available approximately one week prior to the placement of the advertisement. Ms Wigle does not recall being contacted by phone in late August 1991 by Mr. Murad who was inquiring whether there were any available positions at Allied Chemical. She believes that had she been contacted by any person interested in an available position for which they were advertising, and that person claimed to have a Bachelor of Science degree in a Chemistry related field, she would have passed that information on to Mr. Elford or at least made the caller aware of the permanent vacancy. She did not have any explanation for Mr. Murad's testimony that he was not made aware of the permanent lab analyst vacancy when he contacted the company.

129In February 1990, a black man named Derrick Talbot was hired as a temporary lab analyst. He was hired by Mr. Boghean but stayed in the lab for less than a month. Mr. Talbot was found not to be co-operative and eager to please and so Ms Wigle was asked to lay him off and find a replacement. Ms Wigle confirmed that Mr. Talbot was the only temporary lab analyst who had ever been laid off in this fashion.

130In cross-examination Ms Wigle also confirmed that Mr. Jean had left Allied Chemical because he was terminated. She was also asked whether she recalled the conversation referred to by Ms Muzzin in which she was supposed to have told Ms Muzzin that she had been asked to screen out candidates if they had heavy accents on the phone and particularly Chinese accents. Ms Wigle said that she did not believe that she would have made that statement and that she had brought people in that had accents such as Mr. Long Vu however she has no specific recollection from her telephone conversation with Mr. Vu of whether he speaks with an accent. She also referred to Ms Antaya-Chan as someone with a Chinese last name but was not aware, in response to a question by counsel for the Commission, that Ms Antaya-Chan is actually of French ancestry.

131In re-examination Ms Wigle stated that she had not been instructed by anyone in management to avoid scheduling interviews for people with accents. When asked whether she could explain Ms Muzzin's reference to an alleged conversation to the contrary, Ms Wigle responded that Ms Muzzin was seeing Mr. Anderson and had been since the time of the plant closure. Furthermore, Ms Wigle stated that Ms Muzzin and Mr. Riddell were having some problems and Ms Muzzin left the plant because she "just wanted out of there".

132Mr. John Sweezey began employment with Allied Chemical as Human Resources Manager in February 1988. He has extensive prior experience in accounting and employee relations in both Ontario and Quebec dating back to 1967. He is responsible for the personnel, labour relations and safety and health functions which encompasses both hiring and terminating employees.

133Mr. Sweezey indicated that the "parameters for summer hires" document was prepared by Helen Wigle in response to his request. At that time he heard from the safety co-ordinator that there was a concern about having women of child-bearing years work in the Genetron packaging area. Sometime after this, in mid-1990, in response to inquiries about these alleged dangers, Mr. Sweezey went to see Dr. McKinnon, the plant physician. Dr. McKinnon referred him to a study from 1960 conducted by ICI Chemicals that a laboratory rat had developed cancerous tumours after exposure to Genetron 22. However, Dr. McKinnon also told him that other scientific studies had refuted this original concern and Dr. McKinnon said he felt comfortable having females work in the packaging area. Mr. Sweezey does not recall relaying this information and in particular was asked whether he recalled relaying it to Helen Wigle:

I do not recall that either. It may be a real blunder on my part, but l do not recall. I know I did relay some information to some supervision, but to just who, I do not know. But I know, I am sure I did not talk to Helen about it. You know, hindsight is great. There was possibly extenuating circumstances at the time.

Mr. Sweezey does not recall ever seeing the parameters document after the Spring of 1989 because he had given Ms Wigle the authority to hire summer students and temporary employees.

134Mr. Sweezey was more involved in the hiring of permanent employees. This was especially true for salaried positions but he also tried to meet those who were being interviewed for bargaining unit positions. He has not specific recollection of interviewing Ms Abdolalipour for the Environmental Technologist position or of interviewing Robert Hand, Chris Kotevich, or Jim Petty. The decision to hire people for the permanent lab analyst positions or the Environmental Technologist position was made by a group which included the Human Resources Department as well as Ian Elford, Rod Shaw and Barry Riddell.

135The company's Equal Employment Policy was contained in a policy book that was given to Mr. Sweezey when he was hired. He thought there were "about a thousand policies".

136The termination of Mr. Jean took place after a number of months of attempting to train him in new accounting procedures. Mr. Jean complained that he had been unfairly dismissed and the Head Office in Morristown suggested to Mr. Sweezey that he bring Mr. Jean back. Mr. Jean was in fact brought back for several months but Mr. Sweezey said that Mr. Jean was not able to handle the upgrading to new systems. He therefore called Morristown and explained that the situation was intolerable and he would have to terminate Mr. Jean again.

137He was asked about the letter of November 29, 1991 from Bill Anderson regarding alleged questionable hiring practices. Mr. Sweezey denied having any conversation with Mr. Anderson about either Mr. Murad or Ms Abdolalipour and the only conversation he recalls having with respect to discriminatory hiring practices at Allied Chemical involved a friend of Mr. Anderson's who had not been called in for an interview. He understood that the letter was given to him by Mr. Anderson following a training session held for the Canadian Auto Workers Union in Port Elgin at which a local representative reported on his attendance at an international conference on visible minorities. He absolutely denied ever being instructed by plant management not to send applicants that were females or were members of visible minority groups or that he ever gave instructions to Helen Wigle not to schedule interviews for people with accents.

138Mr. Sweezey agreed that it would be absolutely inappropriate to ask a candidate in an interview whether she planned to have any more children and that it would be equally inappropriate to tell a candidate that the company tends not to hire women because of the physical demands of the job. He also stated that he had not felt it necessary to make any efforts to train any of the persons conducting interviews at Allied Chemical in terms of proper interview techniques to make sure that there were not any appropriate questions used. He also stated that he was not concerned about the fact that those interviewing candidates were all white and all male because he did not think that any employees had shown any indication that there would be any sort of discrimination.

139During the time that Mr. Sweezey was Human Resources Manager, there appeared to have been 20 bargaining unit positions filled. Mr. Sweezey acknowledged that none of those 20 employees came from a racial minority group and that, apart from four women who were hired into clerical position, no other women were hired.

140Mr. Sweezey was also asked to comment on the fact that in the history of Allied Chemical, only three racial minority employees had been hired in any capacity. These included Mr. Baracat, the plant manager, who resigned in circumstances that are unknown; Mr. Jean who was terminated once and then a second time and then Mr. Talbot who was hired into a temporary position in the lab and fired after two weeks. Mr. Sweezey stated that everything that was done "was done upright" and that he had been taking active steps to implement the Equal Employment Policy but nothing was done because the plant shut down.

141The only pornography that Mr. Sweezey was aware of in the plant was in an Operators drawer. He became aware of it during the strike but afterwards did not raise the issue with employees because he did not think it inappropriate for an employee to have a pornographic magazine hidden in a desk which he could read during break. He did not receive any complaints about pornography in the work place and he is aware that one directive was sent to employees telling them that pornography should not be posted but he is not sure whether the directive went out before or after he arrived.

142Mr. Sweezey has no recollection of the discussion that Bill Anderson testified took place concerning Ms Abdolalipour. As far as he is concerned "she was brought in as a temporary ... treated the same as all others". He did not speak to Ian Elford or anyone else about her. He also denies that any conversation took place with Mr. Anderson regarding a concern expressed by one of the bargaining unit members that there were no female summer jobs available. He absolutely denies making the statement that "Allied hires girls to paint but not for Genetron Packaging". He agrees however that this statement is consistent with the note at the bottom of the "Parameters for Hiring Summer Students" document referred to earlier. Mr. Sweezey testified that he interpreted the note "all females are kept in M&C" as meaning that all temporary summer student help, male and female, was brought into the maintenance and construction area and were sent out to the plant from there except that female students could not go to Genetron Packaging. He confirmed, in cross-examination, that it was after he approved this memo that he followed up with Dr. McKinnon and learned that there was no support for this concern but he took no steps to communicate that information to Helen Wigle. He acknowledges that his failure to do so was a mistake.

143When Mr. Sweezey was interviewed by Mr. McKinnon, the Human Rights Officer, he indicated that Allied Chemical tried to hire equal numbers of male and female summer students. However, the list of temporary employees for 1990, 1991 and 1992, prepared by Mr. McKinnon contains 55 names of whom 5 appear to be women. Mr. Sweezey's response was "I said we can try, I did not say we can do it". He also could not explain why 12 of the 20 résumés on file of those who were not hired for temporary positions were women. It is also noteworthy that when Mr. McKinnon asked Mr. Sweezey the meaning of the note "all females are kept in M&C" his written reply, filed as an exhibit, was "I don't know why it would be there". I generally found Mr. Sweezey's testimony to be unreliable and his answers to questions often superficial. While his memory of events and circumstances appear genuinely to be weak, I also gained the impression that he was more concerned about painting himself and his employer in a good light than in responding forthrightly to questions.

144On the other hand, Ron Coulter, the Day Foreman for Allied Chemical and an employee for 26 years, impressed me as a forthright and dependable witness. He identified three women in addition to Luba Ristic who were H.F. Lab Analysts prior to the split with General Chemical in 1986. His contact with Ms Abdolalipour occurred generally when he came in to work early in the morning as she was leaving from the night shift and consisted primarily of casual conversation.

145Mr. Coulter explained that timing was an important factor in the effectiveness of the lab analysis function. Operators often had to make adjustments in order to make sure that the product met specifications and the analysts were regularly required to repeat analyses to ensure that the adjustments were working. Consequently, on top of the usual schedule for taking samples, there could be additional requests for analysis and reporting.

146Mr. Coulter was asked whether he recalled having a conversation with Maureen Muzzin and Mr. Eccles about why women could not work in the lab and plant. He testified that he could not recall any such conversation nor did he recall making a comment concerning women and their inability to deal with heights. As for any comments about the inability of women to turn valves in a plant, Mr. Coulter explained that he had been given the responsibility several years before to find a new valve that would be suitable for H.F. plant use. The old style valves had caused a lot of problems for everybody and so he agreed that he may well have been discussing valve difficulties but that these were wide spread. He absolutely does not recall making any comment to the effect that women could not be hired in the plant because they would engage in "hanky-panky". He does not recall anyone ever telling him that there were not to be females hired in Genetron Packaging.

147Mr. Coulter also gave graphic evidence about the strike where he was assigned to the main gate for security and to record events with a video camera. His continual presence with a camera meant that he was the subject of particular and constant attention by the strikers. He personally laid two charges of assault against striking employees and did not drop them. One charge was against someone who threw several eggs at him and he recalls the person receiving an absolute discharge on certain terms. The second incident involved a man who threw a golf ball at him and this person was convicted and fined. He also described two incidents involving Barry Riddell, one in which Mr. Riddell's car was damaged and another in which his sailboat was vandalized.

148Not surprisingly, the bad feeling carried over into the plant after the strike had ended. One morning Mr. Coulter found that someone had urinated through his office door and on another occasion steel pins were driven into lock on his office door and the lock had to be changed. There were also a number of thefts from his office.

149In cross-examination by counsel for the Commission, Mr. Coulter was questioned more closely about his interaction with Maureen Muzzin. Theirs had always been a business relationship and Mr. Coulter testified that after the strike she appeared disinclined to even engaged in casual conversation. He was asked whether he believed Ms Muzzin was lying in attributing to him comments about women being physically incapable of working in some capacities at Allied Chemical and concern about "hanky-panky" on the night shift. He replied that he would not say that she lying but that she was "confused about the issues or ... greatly misguided". He could not think of any reason why she would have attributed those comments to him. Where there were inconsistencies, I tended to prefer the evidence of Mr. Coulter over Ms Muzzin.

150Ian Elford was first employed as a laboratory analyst when he started working at Allied Chemical in October 1989. He holds an Honours Bachelor of Science degree in Chemical Toxicology from the University of Guelph. Mr. Elford was careful to the point of being guarded in giving evidence. When asked about conversations or events, particularly in cross-examination, he typically responded that he did not recall. At other times, however, his recollection of events during the same time period was much clearer. One of the points on which he was clear was that at no time prior to the hiring decision being made, did he express any concern to Mr. Murad about the career objective contained on his résumé. He testified the he raised this concern after the decision was made. The issue was brought out clearly in the following exchange:

Q. Okay. So, it would be fair for me to say that you made an assumption based upon the career objectives set out on the résumé without any discussion with Mr. Murad, in terms of his interests or where he saw his career going?

A. I would consider that to be more than an assumption when it is in print and it specifically states, so it is not an assumption on my part, it is an interpretation of a document.

Q. Okay. But Mr. Murad had expressed to you directly his interest in the permanent lab analyst position. Why didn't you question it at that time if you understood he was looking for a chemical engineering position?

A. Probably the reason I did not question it, I was busy with other things.

151When Mr. Elford was asked to comment on the comparative qualifications of Mr. Kotevich and Mr. Murad, he acknowledged that Mr. Murad's directly relevant work experience was considerably more extensive and not roughly comparable as he believed earlier. Further, on cross-examination, Mr. Elford acknowledged that by the time Mr. Murad started his final temporary assignment at Allied Chemical on September 17, 1991, Mr. Elford was aware that two permanent lab analyst positions were available. He offered no credible explanation why he would not have made Mr. Murad aware of the permanent vacancy when first meeting with him in his temporary lab analyst position.

152When asked why he would not have made Mr. Murad aware of the permanent positions sometime over the first couple of weeks that Mr. Murad was at Allied, Mr. Elford replied that the job was posted in the lab. However, the posting notice went up August 19 and came down on August 26, prior to Mr. Murad starting at Allied Chemical. Mr. Elford then suggested that a possible explanation for not making Mr. Murad aware of the permanent lab analyst vacancy was that the interview process had so far proceeded that the decision might already have been made. Again, however, the offer of employment to Mr. Kotevich was not made until October 9, 1991. Finally, when counsel for the Commission suggested to Mr. Elford that the decision to hire Mr. Kotevich was not made until October 9, Mr. Elford replied it was not necessarily the case because the decision might have been made but not broadcast until Mr. Kotevich had completed his probationary period. However, the evidence again shows that Mr. Kotevich was not interviewed until October 9 and that Mr. Hand had not been interviewed until October 7 so Mr. Elford agreed that the decision to hire Mr. Kotevich was not made until October 9.

153Mr. Elford was asked whether he disagreed with Ms Abdolalipour's testimony that he had never discussed the incident involving Luba Ristic with her. He replied that he seemed to recall discussing it but it is possible that he did not. He does recall Mr. VanDenham asking whether Ms Abdolalipour was being considered for a permanent position. When told that she was not being so considered, Mr. VanDenham did not make any further comments although Mr. Elford inferred that he had concerns. In his statement to the Human Rights Officer, Mr. Elford also mentioned that Rena Gilbert had taken exception to Ms Abdolalipour's "tone" but that he had never discussed with Ms Abdolalipour her version of the incident which appears to have given offense to Ms Gilbert.

154Mr. Elford described Ms Abdolalipour in his statement to the Human Rights Officer as taking her measurements to "several decimal places". In fact, the most she had ever done was take the measurement to two decimal places and after Mr. Elford discussed it with her she took the readings to only one decimal place. This was a particular concern to Mr. Elford with respect to the arsenic measurements. The arsenic measurement is first performed in the HF Wet Lab and then a more accurate measurement of arsenic is performed by the Instrument Lab. The results are then communicated to plant Operators by telephone or written on a slip of paper and taken to the control room. The concern expressed by Mr. Elford was that the Operator might miss the decimal place and conclude that the levels of arsenic were higher than they in fact were and that adjustments may be then made improperly in response to that misperception. This would in turn have an impact on the quality of the final product and the cost to rectify the problem. Mr. Elford told the Human Rights Officer that the plant was adjusted incorrectly on two occasions but Mr. Elford could not explain why he had not recorded these unnecessary adjustments in the log book or the daily lab report sheet.

155Mr. Elford agreed, however, in line with the testimony that had been given by Mr. Coulter, that in order for an adjustment to be made on the basis of arsenic estimates, the lab foremen would not only have to misinterpret the result but would also have to rely on that misinterpretation without ever discussing it with Ms Abdolalipour who would certainly have been able to correct the misinterpretation. Furthermore, the lab foreman would have to review the lab result and consider it sufficiently high on its own to warrant immediate action without even waiting for the more accurate Instrument Lab results. Nonetheless, Mr. Elford stood by his earlier recollection even when told that both Mr. Stewart and Mr. Bennett had testified they did not recall any misreading of Ms Abdolalipour's data or any improper adjustments at the plant. I conclude that the emphasis being placed on the impropriety of Ms Abdolalipour recording data to one or two decimal places is not warranted on the evidence before me and its impact was overstated by Mr. Elford and others. Indeed, I accept Ms Abdolalipour's testimony that Mr. Elford never specifically addressed the alleged problem of recording the estimated arsenic levels with her. My conclusion is buttressed by the fact that another lab analyst, Joe Hand, recorded arsenic estimates using decimal places and his doing so appears to have been unremarkable.

156Mr. Elford was also asked about his performance reviews of Ms Abdolalipour and, in particular, his apparent concern that she had some difficulty performing her analysis on time or establishing priorities. Mr. Elford explained that his concern would have been that the "process people were not getting the service that they required" but did not revise his view when told that the two process foremen could not recall any such difficulty or any conversation with him about any concern about Ms Abdolalipour's work.

157Finally, Mr. Elford stated that he did not treat Ms Abdolalipour any differently than any of the other temporary or permanent lab analysts under his supervision. He was therefore asked by counsel for the Commission to explain why his 30 day performance reviews for Robert Hand, Raed Murad, James Petty and Chris Kotevich all said that he was reserving judgement on whether that should be given seniority but that on Ms Abdolalipour's he had already drawn a negative conclusion. His explanation was that the other analysts had not presented any problems at the 30 day mark but there had been a "number of issues and problems with Masumeh and they warranted recording". He drew this conclusion even though Ms Abdolalipour at this stage had worked a total of eight shifts on her own after her training, four of which were on nights when Mr. Elford was not working and would not have had any opportunity to observe her performance.

158Luba Ristic began employment at Allied Chemical in April 1979. She is a Chemical Engineer by training having received a diploma in 1968 from the University of Belgrade. Her evidence about the altercation with Ms Abdolalipour suggests that she was conscious of her position as a senior women employee. When asked to recall the first time that she met Ms Abdolalipour, she replied "I heard that some girl is coming and 1 assume that she was informed who was working in the lab and she probably knew my name and whatever she has to be know". When Ms Abdolalipour appeared to rebuff her by saying that she did not need instruction because she had a university degree and considerable working experience in a lab, Ms Ristic perceived Ms Abdolalipour as behaving rudely. When asked if she recalled what Ms Abdolalipour was wearing at this point, Ms Ristic replied "she was not in an acid suit at that time. That is why I started to tell her, you know, when she was relaxed, she was not in that suit". I find it noteworthy that Ms Ristic immediately seized on the question of whether Ms Abdolalipour was wearing an acid suit and she seemed highly defensive on the point. In my judgement, comparing Ms Ristic's evidence with that of Ms Abdolalipour, I conclude that it is likely that Ms Abdolalipour was in fact wearing the acid suit when Ms Ristic first met her in the lab.

159Ms Ristic also testified to her long-standing acquaintance with Mr. Riddell who, at the time she began employment at Allied Chemical, was in charge of maintenance and worked with her husband who was a supervisor. Mr. Riddell and her husband had gone on business trips together and this had occasioned his visits to their home, although Ms Ristic testified that these lasted only for a matter of minutes.

160In cross-examination, Ms Ristic was asked whether her husband had any connection with Mr. Riddell beyond the time they worked together at General Chemical. She replied that she did not know although she believed that her husband was in charge of the powerhouse at General Chemical that supplied Allied Chemical with steam right up until the time of its closure in 1992. She was vague on the question of any continuing relationship between the two saying that she was not really familiar because her husband "does not discuss that much".

161Ms Ristic was asked what she knew about Ms Abdolalipour and said that she understood that she came from Iran but did not know anything else. Ms Ristic herself is Serbian. When presented with Ms Abdolalipour's testimony that she had actually hit her when opening drawers to get materials out of the benches, Ms Ristic insisted that "it did not happen, and I do not recall it, and if I did it on purpose I would recall it". Again, there is obvious conflict between Ms Ristic's testimony and Ms Abdolalipour's. Taking account of the heightened sensitivity on both sides, and even allowing that Ms Ristic did not hit Ms Abdolalipour with the drawer "on purpose', I nonetheless conclude that Ms Ristic did open the drawers as described by Ms Abdolalipour and in opening them was at best indifferent to whether the drawer also hit Ms Abdolalipour.

162Mr. Rodney Shaw was originally hired at Allied Chemical in 1973 and was Supervisor of Process Control from 1986 until the plant closed in 1992. He could recollect very little about any interactions with Ms Abdolalipour and Mr. Murad but it was interesting that when presented with Ms Abdolalipour's formal qualifications and work experience he said she "would certainly get into the interviewing process" for the permanent lab analyst position. He could not recall any instance of Ian Elford raising a concern with him about the recording of arsenic estimates to one decimal point or about the impact of such recording on the production process.

163Barry Riddell holds an Honours Bachelor of Science degree in Mechanical Engineering from Scotland's Aberdeen University. He came to Canada in 1971 and, after working for Texaco Canada and the Ford Motor Company, began work with Allied Chemical in 1974. He held a large number of positions with Allied Chemical and from September 1988 through to plant closure he was Operations Manager. At the time of testifying he was Plant Manager responsible for the Amherstburg site.

164As Operations Manager, Mr. Riddell was responsible to keep the Genetron Plant and the Hydrofluoric Acid Plant running. In addition to those direct production responsibilities, he was also responsible for the Process and Control Engineering Group, the Environmental Services Group, Traffic and Distribution.

165Mr. Riddell impressed me as a person of definite views who did not shy away from expressing them forthrightly. The demeanour he exhibited while giving evidence suggests that he would be decisive in carrying out his functions in a serious and professional manner. His highly focussed manner of dealing, which might be described as "no nonsense" or even "hard nosed", is also one which sometimes appears to have impaired his ability to appreciate a full range of circumstances presented to him.

166Mr. Riddell described his relationship with Luba Ristic's husband, Miladan Ristic, whom he first encountered at Allied Chemical in 1976. They did not see each other a great deal but ultimately Mr. Ristic became a Salt Ash Supervisor and Mr. Riddell was a Maintenance' Supervisor and then Manager of Services. As such he provided services to Mr. Ristic's department but has had only very casual contact with since the split as Mr. Ristic remained at General Chemical. Prior to the split, the only personal contact he had outside work was when the two went to a conference. Mr. Riddell's wife drove him to Mr. Ristic's home and they took the car to the airport from there.

167On the question of pornography Mr. Riddell testified that when he arrived in 1974, the maintenance shops and control room were, in his words, "basically wallpapered with pin ups". This struck him as strange because he had come from the Ford Motor Company where that would not have been acceptable. However, within a couple of years, he recalls a directive coming from the plant manager and that such material was seldom seen thereafter. He frankly admitted that there was a pin-up picture on the inside of the washroom door in the control room and in the flash dryer area. Mr. Riddell testified that he did not give any thought to the pin up on the washroom door after the strike was over because he no longer had occasion to use that washroom and because the door was always closed when he was in that area. However, with regard to the pin up picture on the flash dryer control room wall, he asked the production supervisor, Ken Eccles, to have it taken down and he repeated this three or four times. As he described it, every time the picture was taken down, a new one would reappear sometime later and so he eventually took it down himself and wrote in the log book "Gentlemen, please keep your family portraits at home" followed by two or three sentences advising them that it was not acceptable to post such material.

168In cross-examination, Mr. Riddell agreed that such pictures would have a strong negative impact on women working in the plant but says that he does not remember ever seeing a recurrence of the pictures after he made the entry in the log book. Counsel for the Commission suggested that his comment indicated that he was being light hearted about the issue and Mr. Riddell explained that he did not think he could gain anything by being heavy handed. There were four or five men who rotated through that area and he had no idea who was putting up the pornography and could not exert any discipline on that basis. As he described it "I wanted to take action without pissing off the whole crew" but believes he that the workers in the plant got the message and that his light hearted introduction did not send them any mixed signal. He denies every having seen any pornography posted in Jan Hallett's office or any other of the maintenance offices.

169It is clear from Mr. Riddell's testimony that he was not involved in the hiring of temporary staff nor did he have any interest in participating. Consistent with what I take to be his general approach to his responsibilities, he treated this as one of a number of responsibilities that he could readily delegate in order to concentrate on those areas which he believed were deserving of priority. As he put it, "temporary people came and went and they were never really something I felt I had to be concerned with". His role in the process of hiring temporary employees was simply to give approval to employee relations when the request was made to bring in temporary staff. Other than initialing the request form and sending it back to Ms Wigle, he had no knowledge of the temporary staff as they were being brought in.

170The first time that Mr. Riddell saw Mr. Murad after his most recent hiring as a temporary lab analyst on September 17, 1991, he went up to him and welcomed him back and asked how school was going. Mr. Murad replied that he had finished his degree and said he was looking for permanent job. Mr. Riddell says he told Mr. Murad that there was nothing available in engineering at the moment and wished him luck. Mr. Riddell was completely aware that there was a vacancy for a permanent lab analyst but stated that it never occurred to him to tell Mr. Murad there was a vacancy because it did not make sense to him that someone who had just graduated as an engineer would seek a full-time job as a lab analyst. He says he only became aware that Mr. Murad was interested in the permanent lab analyst position on the morning of October 7. He remembers the day specifically because it was the same day that Mr. Elford was going to interview Robert Hand. Again, his testimony was that when Mr. Elford stopped him in the Instrument Lab and said he had been approached by Mr. Murad who was interested in the permanent lab analyst position, he told Mr. Elford that it did not make sense to hire a chemical engineer for a lab position and have him them take a chemical engineering job some place else. As far as he was concerned, Mr. Elford and Mr. Shaw and he had already discussed that if Mr. Hand's interview was positive they would hire him and Mr. Kotevich who Mr. Elford was recommending very highly. In Mr. Riddell's words:

I was somewhat aggravated, like these things -- the hiring process typically took a long time and I wanted to get on with it. The longer we delayed it, the more money it cost us. And that was basically the extent of the discussion. I said that in my opinion it did not make sense to hire a chemical engineer for a lab technician's position. (transcript volume 9, page 94)

In cross-examination, Mr. Riddell said that Mr. Elford did not do anything further to try to convince him to interview Mr. Murad. He stated that he would not have expected Mr. Elford to say to Mr. Murad that Mr. Kotevich was hired because the company was stuck and needed somebody and Mr. Hand was hired because he was older and had more supervisory experience without any mention being made of Mr. Murad's chemical engineering qualifications as the reason for not interviewing him. Mr. Riddell emphasized that indeed they were not stuck for people because if Mr. Kotevich had not wanted the position there was a person named Philip Salad with strong qualifications who would have been ready to take the position. He also stated that he certainly did not hired Robert Hand because he was older or because he had supervisory experience. In fact, his view would be that Mr. Hand and Mr. Murad were about the same age although he would say that Mr. Hand had demonstrated leadership potential but they had hired him because they thought he might have the potential to become lab foreman.

171It became evident during the cross-examination of Mr. Riddell that he did not find Mr. Kotevich an attractive candidate based on his résumé. He agreed that Mr. Kotevich was not the kind of candidate whose résumé would be typically put in the "yes" pile as a short list candidate for an interview:

That is correct. The only reason that Chris got an interview was because he had been in the plant and had -- by his work that he had put forward and the impression he had given his foreman, he convinced him that he would be a good candidate.

Furthermore, there was nothing to indicate on Mr. Kotevich's resume that he was particulary interested in a lab analyst position; it was only during his interview that he was able to convince Mr. Riddell that he was committed to the position and would be likely stay at Allied for the next two or three years.

172Mr. Riddell also referred to the case of Doug Durham whom he took considerable pains to advise that the lab analyst job was not a research type job but one were he would have to get his hands dirty. During the interview, Mr. Durham was able to assure him that this was the kind of job he was interested in and that he would make the commitment to Allied Chemical. Counsel for the Commission referred to both Mr. Kotevich and Mr. Durham as individuals who were able to convince Mr. Riddell that the lab analyst position was the right job choice for them and that they were prepared to make a commitment to Allied Chemical; the following exchange then occurred:

Q. And the point being, as I am coming at this as subtly as a truck, the point being that that is the very opportunity that Mr. Murad never received with you, in terms of having the interview opportunity to sit down with you and to field the questions and to be given the opportunity to persuade you that notwithstanding ... the chemical engineering ... that he did have the kind of commitment to Allied that you were looking for. You will agree with that?

A. That is correct.

Q. He was denied that opportunity?

A. Yes.

173Despite Mr. Riddell's forthrightness during this longer exchange, there is a significant point of disagreement on the evidence. Mr. Murad testified that when he informed Mr. Riddell he had finished his degree he also told him that he was specifically interested in a permanent position in the lab. Mr. Riddell states that that was not true and that he did not say that he was interested in a job in the lab. He also states that if Mr. Murad had specifically mentioned an interest in the permanent lab analyst position he would have asked him "why the hell do you want to ... come back to being a lab technician after you spent all that time and effort and funds in becoming a ... chemical engineer. That would have been my first response." (transcript volume 10, page 76).

174It is clear Mr. Murad did tell Mr. Riddell that he was interested in a permanent position at Allied Chemical. It is likely that he either expressly or by strong implication indicated that he was interested in a permanent lab analyst position. However, I believe that Mr. Riddell may well not have picked up on Mr. Murad's possible interest in the lab position during this conversation because it would not have made sense to him that somebody with a chemical engineering degree would be seeking such a position. When Mr. Elford formally brought it to his attention on October 7 that Mr. Murad was definitely interested in the permanent lab analyst position, Mr. Riddell was even less disposed to consider Mr. Murad because there were two candidates in view to fill the positions. As an aside, one might well ask why it took Mr. Elford until October 7 to advise Mr. Riddell that Mr. Murad was interested in the job.

175Some light is shed on Mr. Riddell's thinking in this situation by his explanation of another hiring decision. At the time he hired Mr. Elford, one of the candidates for the lab foreman position was a woman named Svetlana Palanacki. Mr. Elford had an Honours Bachelor of Science in Chemical Toxicology and prior to his experience at Allied had worked for 18 months at Caledon Laboratories. His experience at Allied as a lab analyst was about 11 months. Ms Palanacki on the other hand had an Honours Bachelor of Science degree in Chemistry from the University of Windsor and was a candidate for her Master's degree in Biochemistry. She also had seven years experience as the Director of Quality Control at Castle Technology Inc., four years experience as an independent consultant and owner of a chemical services company and a further three years as an assistant manger of quality control. Mr. Riddell agreed that she had a lot more experience than Mr. Elford and was "a great candidate". However, she was not offered the job. It was instead offered to someone who had already been a lab foreman and when he turned it down the short list was reduced to Mr. Elford and Ms Palanacki.

176The hiring team consisted of the then lab foreman Barry Boghean, Rod Shaw and Mr. Riddell. One of the thoughts they had was that if Ms Palanacki was hired "it would be like having a race horse to pull the cart". He explained that the lab foreman's job was not at a very high level and that it was not a position that was likely to fit with where she wanted to go with her career. The person to whom they offered the job but who turned it down, on the other hand, was someone who did not have particularly high expectations of moving up the management ladder but who had good experience, particularly with unionized workers. When he turned them down, they decided to offer the job to Mr. Elford as someone who, particularly according to Barry Boghean, should be given a chance because he had demonstrated that he could rise to the challenge of the job.

177Mr. Riddell knew Ms Abdolalipour was working as temporary lab analyst in the Spring of 1991. However, he was not aware that she was interested in a permanent lab analyst position. He does recall interviewing her on June 19, 1991, the day after she had been interviewed by Tony Sinclair for the Environmental Technologist position. Considerable time was spent discussing what was encompassed by Agricultural Chemistry since, as a mechanical engineer, Mr. Riddell was unaware of what it might comprise. He recalls mentioning that they were looking for an Environmental Engineer because they felt that some environmental problems could be avoided or eliminated through re-engineering. Ms Abdolalipour responded that she had always been interested in environmental aspects and intended to continue her education in that respect. His evaluation of the interview, which he subsequently relayed to Tony Sinclair, was that Ms Abdolalipour had some useful skills and, although an environmental engineer would still be preferable, she should not be eliminated from consideration simply because she was not an environmental engineer. The successful applicant, Frank Mansena did hold a degree in Environmental Engineering.

178Mr. Riddell was concerned when he received, a few days after the interview with Ms Abdolalipour, a written request for a list of the changes he would like to see in the lab because she wishes to get started on some of them. He then went back to Tony Sinclair and asked him to let her know that they were still interviewing that she did not yet have the job.

179After the decision was made to hire Mr. Mansina, Mr. Riddell had occasion to ask Mr. Elford what his impressions of Ms Abdolalipour had been as a temporary lab analyst. At that point Mr. Elford told him that he was not recommending Ms Abdolalipour for seniority because she did not relate well to other people in the lab and did not follow instructions and Mr. Riddell also recalls mention of a problem with someone in the Traffic Department who he believed to be Rena Gilbert. Mr. Riddell was asked in cross-examination whether, based on her formal qualifications and experience and on the interview he had with her for the Environmental Technologist job, Ms Abdolalipour would have been a good candidate for a permanent lab analyst position. His view was that she would be a candidate they would want to look at. However, he said that he did not approach Ian Elford on the basis that he was interested in considering her for a permanent lab analyst position because he was thinking of her in the context of the Environmental Technologist job. He was not thinking of her for the permanent lab analyst position and, after hearing Mr. Elford's comments about her performance and behaviour in the lab, he would not have given it further thought.

180Mr. Riddell acknowledged that he had never interviewed a women for a permanent lab analyst position although he did point out that he had interviewed Ms Palanacki for the Lab Foreman's job. He is "absolutely positive", however, that he did not tell Mr. Petty in his interview that he did not usually hire women because the job was too physically demanding. He does recall saying that the job was physically demanding and that there was only one woman working full-time and that there were not a lot of female applicants for the position. When asked how it was that Mr. Petty could have misconstrued what he said, Mr. Riddell indicated that one of his major objectives in a interview was to alert applicants to the reality of the working environment which was unlike that of a university laboratory. He emphasized that it was dirty and somewhat unpleasant. However, I note that this approach cannot itself count as a factor that discouraged women from applying for the position because Mr. Riddell had never interviewed a women for permanent lab analyst job. Mr. Riddell stated that he simply explained to Mr. Petty that the fact of it being an industrial environment with 12-hour shifts operating seven days a week would explain why they would not have many female applicants. He nevertheless emphasized that he did not talk about characteristics of the job and then state that women were not generally hired; instead he recalls simply trying to rationalize why there were not many women working there. In this instance, I am inclined to believe that Mr. Riddell did say that Allied Chemical did not hire many women although I can accept that for him it was a statement of historical fact and not one about purpose or design.

181Mr. Riddell also disagreed that he had asked Ms Muzzin whether she was planning to have any more children when he interviewed her in May 1989. He also stated that he did not ask Ms Antaya-Chap whether she was planning to have any more children. When asked whether he found it astounding that two women would independently testify that he asked them the same question, he simply responded "nothing surprises me". If it was only Ms Muzzin's word against Mr. Riddell's, 1 would have difficulty accepting that he used that those words; Ms Muzzin struck me as having some resentment towards Allied Chemical and I believe this may have affected her testimony. However, I have no basis for believing the same of Ms Antaya-Chan and I believe Mr. Riddell may well have asked these questions in the course of his interviews with both women albeit in a manner that was probably amicable and non-confrontational. His evidence regularly pointed to the fact that he was concerned on hiring any employee to have that employee stay for a reasonable length of time. His practical concern may be assumed to have applied whether the prospective reason for leaving Allied Chemical would be to take another job or to have another child. He also agreed that he might have joked with Ms Muzzin that no woman should be earning $16 or $17 per hour.

182Mr. Riddell also denies being part of any group where some comment was made about Ms Muzzin's legs. He recognizes that this is not acceptable behaviour and would have so advised anyone who had made such a comment in his presence. At no time does he recall Ms Muzzin ever saying to him that she was upset over any such incident and he describes her as the type of person who would have done so. He also denies hearing any comment by Mr. Dziadyk concerning the effect of the Montreal Massacre being that there would be 11 fewer women who could take their jobs. I tend to believe Mr. Riddell when he says that he was not privy to either of these incidents and I believe that he would have taken some action had he been privy to either one of them. He also stated that there were no Afro-American visitors from Morristown and has no idea who Ms Muzzin was referring to.

183Mike Colarossi was employed as a lab analyst at Allied Chemical from 1989 to 1992. He holds a three-year chemical engineering technologist diploma from St. Clair College. While Ms Abdolalipour was working at Allied Chemical, he usually worked the shift following hers. When asked to make observations about her performance he replied that he would sometimes find that stock solutions were not filled when he came in.

184Because he felt that he was doing extra work, Mr. Colarossi asked Ian Elford if he could change shifts. When asked, he could not identify any other tasks that made up this extra work. Mr. Colarossi also testified that the data collected by Ms Abdolalipour were not usually put in until the end of the shift and he considered that a problem because operators needed to know whether the processes were working and stable. He also noticed that figures were not rounded off; according to him "they should go to the second last place of the decimal and they were more usually". His shifts were not changed.

185Mr. Colarossi once asked Ian Elford whether he preferred hiring girls in the lab and he remembers Mr. Elford saying something like "that is all that is available right now". He asked the question of Mr. Elford because "it was basically a man environment" with limited facilities for women.

186Garry Towers gave evidence by conference call from Baton Rouge, Louisiana were he is employed as a safety supervisor at a facility operated by Allied Signal. He was employed at Allied Chemical as a Senior Safety Inspector from 1978 until June 1986 and then after the split held the position of Health and Safety Supervisor until May 31, 1992. An affidavit was added into evidence that had attached to it a memorandum dated June 8, 1977 indicating that some test results that demonstrated that women of child bearing years might be subject to health risks if they worked in the Genetron Packaging area. Mr. Towers recalls having a conversation with Helen Wigle in which he instructed her not to hire female employees for the Genetron Packaging temporary positions due to the health and safety concerns that had been raised in this memorandum.

187In 1991 Mr. Towers received an inquiry which prompted him to speak to the Director of Occupational Health and Safety in Morristown, Jim Freeman. He asked about the health and safety concerns concerning the placement of females of child-bearing years in the Genetron Packaging area and was informed that the earlier research had been refuted by subsequent studies. Mr. Freeman then send him a memo from the Allied Chemical Corporation, dated April 23, 1981 confirming that the earlier concerns had been rescinded. Mr. Freeman then relayed that information to John Sweezey but does not recall doing so with Helen Wigle.

II ANALYSIS AND APPLICATION OF LAW TO FACTS

188It is clear that the Complainants have the burden of proving, on the balance of probabilities, that the Respondent violated the Ontario Human Rights Code; Almeida v. Chubb Fire Security Division of Chubb Industries Limited (1984), 1984 CanLII 5036 (ON HRT), 5 C.H.R.R. D/2104 at paras. 17843 and 17844. It is sufficient, however, for the Complainants to establish that their prohibited ground of discrimination constituted only one among a number of factors leading to the decisions which are the subject matter of the complaints; see Almeida, supra at para. 17841; Holden v. Canadian National Railway (1990), 1990 CanLII 12501 (ON HRT), 12 C.H.R.R. D/105 at para. 8. It is also clear that a violation of the Code may be established where there was discrimination in the hiring process even if the complainant would not have been the successful applicant in the absence of such discrimination; Ghosh v. Domglas Inc. et al. (1990), 1992 CanLII 14247 (ON HRT), 17 C.H.R.R. D/216, paras. 105-106; Agbert v. M & G. Millwright Limited (1993 Ontario Board of Inquiry, unreported). Discrimination in hiring need not be intentional nor operating on a conscious level for me to find a violation of the Code; Richards v. Waisglass (1994 Ontario Board of Inquiry, unreported) at page 16.

189This is a very complex case as I believe is evident from the facts brought out in evidence as set out at length above. The type of discrimination being alleged is not of the sort that would be obvious or even clearly intentional. There is ample evidence of strong personalities and strong feelings, exacerbated in some instances by the effects of a very intense and bitter strike. Most of the evidence is circumstantial requiring me to draw inferences. In her book, Proving Discrimination in Canada, Beatrice Viskelety notes that there is virtual anonymity that the usual standard of proof in discrimination cases is a civil standard of preponderance or balance of probabilities:

The appropriate test in matters involving circumstantial evidence, which should be consistent with the standard, may therefore be formulated in this manner: an inference of discrimination may be drawn where the evidence offered in support of it renders such an inference more probable than the other possible inferences or hypothesis. (page 142)

190Racial discrimination, like discrimination on the basis of gender is most likely to operate not consciously but through assumptions and biases that are largely unconscious; see the remarks of the Ontario Court of Appeal in R v. Parks (September 23, 1993) and the decision of the Ontario Board of Inquiry in Richard v. Waiglass, supra, at page 16. It follows that attitudes tainted by racial bias are more likely to influence a workplace where there has been no active or systematic encouragement to examine the assumptions on which subjective evaluation and hiring processes operate. It also follows, given the clear societal recognition that explicit racial comments are unacceptable that the simple absence of such comments by itself says little about the existence of attitudes that are unconsciously tainted by racial biases and this could equally be said for gender discrimination.

191The Commission forcefully advances the view that a racially homogeneous work force is a strong indicator that racial biases and attitudes are present in the workplace. Typically, when Boards of Inquiry have considered whether conclusions can be drawn about hiring practices from a review of workforce profiles, they have concluded that the lack of applicant flow data means that no reliable conclusions can be drawn. The Commission urges me to adopt a principle that where census data indicate that the representation of racial minority employees in a particular workforce is lower than the representation of members of racial minorities in the surrounding area, the conclusion should be drawn that racial bias exists in the hiring process in the absence of any reason to believe that the applicant pool is less than representative. I am further urged to place the evidentary burden on the Respondents on the basis that they control the information about who was applying. I agree that evidence about the representation of racial minority employees in the work force relative to the representation in the surrounding area of population is appropriate for consideration as one factor that a Board of Inquiry would be expected to take into account. However, I am not satisfied that the fact of a disproportion should by itself warrant a conclusion that racial bias exists in the absence of the Respondents discharging the burden of proving that the applicant pool was unrepresentative. Equally, I am not willing to accept the conclusion apparently drawn by Ms Khan that a person in a racially homogenous work environment inevitably faces "massive exclusion, isolation and alienation within the work place". Indeed, the testimony of the complainants in this proceeding does not bear out that conclusion.

192I accept that the display or tolerance of pornography in the work place is a likely indication of a male dominated culture where it is acceptable to view women as primarily sexualized beings. I further accept that the presence of even "soft" pornographic images of women are likely to increase their feelings of physical vulnerability and their adverse differential role in the workplace. As Ms Khan's testimony and the evidence of Ms Abdolalipour suggests, the experience is likely to be exacerbated for women from traditional cultures.

193The display of pornographic images of the women in the workplace is a display of a kind of stereotype about women and their role and I accept that generally the prevalence of stereotypes about women and their role in the workplace indicates the presence of gender discrimination. These can include notions that only certain types of work are appropriate for women or that women only seek employment to supplement a spouse's income. It is also clear, and was explicitly revealed on the evidence, that not all women are treated the same in a male-dominated work environment or will react in the same way or share the same experience.

194The evidence is clear that Mr. Murad's educational qualifications and work experience ranked him at least on par with Robert Hand and ahead of Chris Kotevich. That Mr. Kotevich was hired largely because Mr. Elford was enthusiastically promoting his candidacy is clear from the evidence of Mr. Riddell but is also indirectly apparent in his reluctance to acknowledge, except when pushed, that Mr. Murad's qualifications and experience were superior. There is also, on the evidence, no satisfactory explanation as to why Mr. Murad was not promptly advised about the vacancies for the permanent lab analyst positions. Mr. Elford's explanation as to why he would not have advised Mr. Murad of the permanent vacancies when he met with him at the commencement of his temporary employment at Allied Chemical in September 1991 is simply unsatisfactory. There is also no clear explanation why Mr. Elford would not have raised Mr. Murad's name in meetings with Mr. Riddell prior to October 7, 1991.

195Mr. Murad testified that when he spoke to Mr. Elford some days after requesting information on the status of his application for the full-time position, Mr. Elford told him that they needed a Bachelor of Science. When Mr. Murad reminded him that he held a Bachelor of Science degree in Chemical Engineering and that Mr. Kotevich had been hired when he held a Bachelor of Science degree in Biology, Mr. Elford told him that they were "stuck and needed somebody". Mr. Murad asked about the second vacancy, Mr. Elford stated that they had somebody in mind who was older with supervisory experience. Mr. Elford denies making these statements to Mr. Murad; however, I believe that he did make them. As I note later in these reasons, it was consistent with Mr. Elford's general management style to avoid conflict or confrontation and I believe that, at the time, he gave these reasons for the sake of expediency.

196I have not concluded that Mr. Elford was being purposefully untruthful when he gave evidence. However, I believe he failed to accord equal treatment to Mr. Murad in the hiring process and that his failure to do so was at least partly responsible for Mr. Riddell's irritated refusal to consider interviewing him at a relatively late date. I can accept that Mr. Riddell, himself an Engineer, would not initially consider it reasonable that an Engineering graduate would be interested in a lab analysts position however, I am less sure that he would not at least have granted Mr. Murad an interview had Mr. Murad's interests been brought to his attention earlier and more forcefully by Mr. Elford. I equally accept that, even leaving aside the question of whether Mr. Murad would have been a successful candidate for one of the available positions, the fact that he was not interviewed was recognized as significant unfair treatment by Mr. Riddell himself. His treatment is in particularly strong contrast to that experienced by Chris Kotevich, a white male, who was granted an interview because his candidacy was promoted by Mr. Elford and who was therefore given the chance to persuade Mr. Riddell and Mr. Shaw that he should be hired even though his qualifications were not prima facie suitable. I accept the Commission's submission that, to a large extent, Mr. Murad, as a member of a racial minority group, became virtually invisible when advancement to a permanent lab analyst position was being considered. I do not believe this happened at a conscious level but I conclude that there was discrimination against Mr. Murad at least partly on the basis that, because of his race and colour, he was not seen as fitting in.

197An application of the law to the facts yields a similar conclusion in the case of Ms Abdolalipour. It is significant that Mr. Elford appeared to have decided not to consider Ms Abdolalipour for a permanent lab analyst position within one month of her starting work at Allied Chemical. This contrasts with his 30 day performance evaluation for the four male analysts on whom he reserved judgement. I do not find convincing Mr. Elford's stated justification based on Ms Abdolalipour's job performance. I have already indicated that any alleged concern over her recording of arsenic estimates to one or two decimal places appears to have been highly disproportionate to any effect on operations or production. Furthermore, the modest evidence that she had difficulty performing her tasks in a timely way or were somehow unable to get along with others is more than balanced by contrary views.

198I accept that Mr. Elford received information about Ms Abdolalipour, however, neither Jim Stewart nor Mike Bennett recall any real problems with Ms Abdolalipour's work nor do they recall speaking to Mr. Elford about her. They do recall other incidences where they spoke to Mr. Elford about problems with a lab analyst's work. This strongly suggests that the reliance placed by Mr. Elford on the information he received was indeed disproportionate and this disproportion is also revealed in his exaggeration concerning the recording of the arsenic results. The incidence of confusion allegedly caused to operators and plant foreman is not substantiated by any objective evidence; his claim that Ms Abdolalipour was entering the arsenic estimates to "several" decimal places is considerably overstated and his statement to the Human Rights Officer that her recording of arsenic estimates lead to erroneous adjustment of the plant on two separate occasions is clearly not borne out on the evidence.

199The evidence that Ms Abdolalipour did not get along other analysts is also rather sparse. The disagreement with Ms Ristic I take to be a function of Ms Abdolalipours intensity and newness on the job and Ms Ristic's desire to have things done the way she wanted them and, perhaps, by the type of person she was used to dealing with. Furthermore, Mr. Elford made no attempt to try to resolve the apparent disagreement between Ms Abdolalipour and Ms Ristic. As for any comments from Rena Gilbert or Mr. Van Denham, their content is uncertain and they appear to have come after Mr. Elford had made up his mind anyway.

200It is clear on the evidence that Ms Abdolalipour was unrealistic in her appraisal of Mr. Elford's reactions while he was interviewing her and naive in ascribing to him and others such a high degree of enthusiasm for her candidacy. Nevertheless her treatment as a potential candidate for the permanent lab analyst position partakes of something of the invisibility that Mr. Murad suffered from. My conclusion is supported by the remarkably large body of evidence of a male dominated work environment at Allied Chemical; with the exception of Ms Ristic, whose seniority entitled her to come over to Allied Chemical at the time of the split, no women has been employed in a permanent union or management position in either the HF or Genetron Plant since 1986.

201The attitude towards women in the plant is evident when one considers the question of women working in the Genetron Plant. Sometime after 1986, the official position of Allied Chemical was that female employees were not to be hired for temporary positions in Genetron Packaging even though the study on which this directive was founded had been refuted in 1981. Given the obvious impropriety of refusing jobs to female employees in the absence of any such medical justification, it is surprising that no attempt was made to check on the continuing validity of information that arose out of a 1977 study involving laboratory animals. Surprise gives way to amazement when it is revealed that both Mr. Sweezey and Mr. Towers learned in 1991, as a result of an inquiry specifically arising out of a question of hiring female summer students, that the information had been proven invalid a decade earlier and yet neither of them informed the person responsible for hiring temporary employees, Helen Wigle.

202This generally slack and cursory attitude towards women employees is to some extent reflected in the recurrence of pornography. It clearly was posted in the flash dryer control room and on the inside door of the washroom in the main control room. Many people in management positions knew that it was there and knew that it was visible to women employees. The situation continued for a considerable period until Mr. Riddell intervened personally. I do not believe that his attempt at humour in making the entry in the logbook was an indication that he took the matter lightly but I do find that the general attitude at Allied Chemical one which had a discriminatory effect on Ms Abdolalipour who some of the men baited by purposefully exposing her to the pornographic pictures.

203In light of the conclusion I have already reached, I do find it necessary to draw further conclusions about the accuracy of comments allegedly uttered by men in management positions that revealed stereotypical attitudes about women. I have already indicated that I think it is likely that Mr. Riddell asked Ms Muzzin and Ms Chan during interviews if they were planning to having any more children. However I would be less inclined to accept the recollection of either Ms Muzzin or Mr. Anderson on several other attributions that they made. I also believe that Mr. Riddell's explanation of his discussion with Mr. Petty reveals a stereotypical assumption that women would not apply to be lab analysts because the job was not nine to five shift work and was physically demanding and dirty. I believe that this unconscious view explains at least partially why he did not recommend that she be considered for the lab analyst position after he had interviewed her for the Environmental Technologist job and stated that her qualifications would have made her a candidate for a full-time lab analyst position. However, I do not find that Ms Abdolalipour was discriminated against with respect to the Environmental Technologist position. There was an air of unreality about her descriptions of the attitude of both Mr. Sinclair and Mr. Riddell and I accept that Mr. Riddell had not made up his mind and that the interview proceeded as he described although in a way that disappointed Ms Abdolalipour. I also accept that Mr. Mancina was hired because he was a superior candidate and not because of a discriminatory attitude towards Ms Abdolalipour.

204I also find that a poisoned work environment existed at Allied Chemical in violation of the general equality rights protected under s. 5(1) of the Code. Ms Abdolalipour's exposure to pornography in the control room, which she was required to attend as part of her duties at least twice every shift is evidence of this poisoned environment. The fact that there were men in the room and that they purposefully exposed her to the pornography because they knew it would upset her is further evidence of this poisoned working environment. It is significant that Ms DeGroot's experience was that she was protected from the poisoned environment by being chosen for special treatment by her male co-workers. Again, I would emphasize that this generally loose attitude towards the posting of pornographic pictures is related to a general slackness that I perceived in the way women were viewed and treated at Allied Chemical. It indicates that Allied Chemical failed to take adequate steps to fulfil its obligation of ensuring a work environment free of discrimination.

REMEDIES

205I find that Mr. Murad experienced discrimination of the basis of his race, colour and ancestry and that as a result he was denied the position of permanent lab analyst for which he was qualified and to which he objectively would have succeeded. Allied Chemical is therefore ordered to pay Mr. Murad the wages he would have earned from his last day of work, December 17, 1991 to May 1, 1992 which is the last day of work of the successful candidates. In addition I award Mr. Murad $8,000 in general damages for mental anguish and the injury to his dignity, self-respect and sense of self-worth as a member of Canadian society. Interest is to be paid on all amounts at the rate of 6% per annum to the date of this decision.

206I am unable to conclude that Ms Abdolalipour would inevitably have ranked ahead of Mr. Petty as a successful candidate for the permanent lab analyst position. However I find that her gender, race and colour were factors in the assessment of her work performance and in her failure to be considered for the permanent vacancy and that as a result she experienced discrimination in the hiring process by both Allied Chemical and Barry Riddell. I also find that she experienced discrimination on the basis of her gender, race and ancestry in being exposed to a poisoned work environment. I do not find that she experienced discrimination in her treatment during the hiring process for the Environmental Technologist position. I order Allied Chemical to pay Ms Abdolalipour $8,000 general damages for discrimination in the assessment of her work performance and $5,000 general damages for exposing her to a poisoned work environment. Interest on these amounts will be payable at 6% per annum to the date of this decision.

207I believe these awards recognize the significance of the injuries suffered by both these complainants and to which they testified eloquently.