Tahna v. Bombardier Aerospace Regional Aircraft, 2010 HRTO 1425

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Abdolreza Tahna

Applicant

-and-

Bombardier Aerospace Regional Aircraft

Respondent

DECISION

Adjudicator: Jennifer Scott

Date: June 28, 2010

Citation: 2010 HRTO 1425

Indexed as: Tahna v. Bombardier Aerospace Regional Aircraft ______________________________________________________________________

AppearanceS BY

Abdolreza Tahna, Applicant ) On His Own Behalf

Bombardier Aerospace Regional Aircraft, ) Caroline Ursulak, Counsel

Respondent )

INTRODUCTION

1The applicant filed a transitional Application on August 12, 2009 under section 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”), alleging that the respondent discriminated against him with respect to employment on the basis of age, colour, ethnic origin and place of origin. In particular, the applicant alleges that the respondent did not hire him in January 2006 because he is from the southern part of Iran and has a darker complexion than many Iranians. A hearing of this matter was held on June 10, 2010.

2While the applicant raised many grounds of discrimination in his human rights complaint, including creed, the evidence during the hearing focused on his place of origin, ethnic origin and race. As such, this Decision will consider whether any of these grounds were a factor in the respondent’s decision to not hire the applicant in January 2006.

BACKGROUND

The Respondent’s Workforce

3The respondent manufactures airplanes. The aircraft business is very cyclical and the respondent has had great fluctuations in its workforce over the past eight years. In 2002, there was a sharp downturn in the aircraft industry and the respondent was forced to reduce its workforce by 2,000 employees in Toronto and 10,000 worldwide. The downturn lasted until the end of 2004, the beginning of 2005. In 2005, the industry became busy again and the respondent required more than 800 new employees in production in Toronto.

4The respondent filled its staffing needs by first recalling employees who had been laid off. After the recall, the respondent conducted an internal search to fill some of the vacancies. After the internal search, the respondent had 575/580 positions to be filled externally.

5The external hiring process took place in three stages. The first stage involved culling through the applications and a brief telephone interview to confirm that the information in the candidate’s application was accurate. The second stage involved a technical test to ensure the candidate had the technical ability to do the job. The technical test involved building a pulley from a blueprint provided. A candidate did not have to have technical experience in the aircraft industry to pass this test. The third stage involved an interview to assess the candidate’s fit with the values of the respondent’s workplace. A candidate had to pass each stage before moving to the next stage.

6The respondent received thousands of applications for the 575/580 external positions. Of the thousands of applications, approximately 1,000 people were interviewed on the telephone. Of the 1,000 people interviewed on the telephone, approximately 800 were invited to attend the respondent’s workplace to complete a technical test. Of the 800 who passed the technical test, approximately 700 people were interviewed and of the 700 people interviewed, 575/580 people were hired. Therefore of the 1,000 people considered for the job, approximately one-half were hired.

7The interview was conducted by different teams of two, with representation from human resources and production. The interview was based on a standard set of questions that assessed the candidate’s soft or behavioural skills. There was little emphasis in the interview on a candidate’s technical expertise.

8The following questions were asked at the interview:

Teamwork: Tell me about a time in which you were able to help out a peer or team member: what did you do, why did they come to you and was the end result?

Sometimes our peers’ ideas differ from our own. Tell me about a time when you were faced with this type of situation: how did you handle it and what ended up happening?

Rigour/Self-Discipline: Tell me about a situation when you had to work against a very tight schedule: did you accomplish the job and what had to be sacrificed in the process in order to accomplish the job?

Tell me about a situation when you had a question about a task but your supervisor was not around to ask him/her: what did you do and what was the end result?

Can you tell me about a time when you saw or heard that someone on your team or unit was doing something that you knew was against policy/procedure or regulation: what did they do, how did you handle it, what were the company’s policy and or procedure for these types of situations and did you follow this?

Professionalism/Judgement: Working to a customer’s tight deadlines usually means working quickly. Tell me about a time when you were working against a tight deadline and could not remember whether or not you had completed an operation: what did you do, what was the operation and what was the end result?

Innovation: Tell me about a time when you helped to improve the productivity of your work unit: how did you identify the opportunity for improvement, how did you implement this, did you do this on your own or did others help you and how did you incorporate this into the already existing system?

Leadership: Tell me about a time when you inspired someone to work hard to do a good job: how did you do this, how did they respond and what was the end result?

Tell me about a situation when you wished you had acted differently with someone at work: why and what do you wish you had done instead?

The Applicant’s Work History and Application

9The applicant was born in southern Iran and came to Canada in 1976. In 1977, he commenced a program at John Abbott College in aircraft maintenance and completed two years of the program. He did not complete the program.

10In 1980, the applicant obtained employment with Canadair in Montreal until 1983/84 at which time he was laid-off. The applicant and his family moved to Ontario and he worked for McDonnell Douglas as an aircraft mechanic from 1985 until 1992/93 when he was again laid-off. The applicant has not worked in the aircraft industry since that time.

11From 1997 until 2001, the applicant continuously applied for employment with the respondent until the downturn in the aircraft manufacturing industry from 2001-2003. The applicant received no response from the respondent to his applications.

12In the fall of 2005, the applicant became aware that the respondent was hiring. On November 30, 2005, he sent an application expressing his interest in joining the respondent as an aircraft mechanic. He applied under the name of “Reza Tanha”.

13In early December, the applicant was interviewed briefly on the telephone and was invited to take the technical test. The test was completed on or about December 6, 2005. The applicant passed the technical test and he was invited to attend an interview the next day.

14On January 12, 2006, the applicant was advised that he was not selected for employment with the respondent. The letter contained the following sentence: “Unfortunately, although your qualifications are impressive, we have decided to pursue other candidates”. A standard letter was sent to all unsuccessful candidates.

15The applicant filed his human rights complaint with the Ontario Human Rights Commission on March 27, 2006.

ANALYSIS

16In hiring or promotion cases, a prima facie case of discrimination is established by proving the following:

• the complainant was qualified for the particular employment;

• the complainant was not hired; and

• someone no better qualified but lacking the distinguishing feature which is the gravamen of the human rights complaint subsequently obtained the position. See Antropov v. Toronto District School Board, 2010 HRTO 305.

17The applicant passed two of the three stages of the respondent’s hiring process: the initial culling of his application and telephone interview, and the technical test. These two phases involved assessing the applicant’s technical qualifications and experience. Because the applicant passed each stage, it is clear he was qualified for the position.

18The applicant was not hired as an aircraft assembler for the respondent.

19The applicant believes his race was the reason why he did not get the job. He applied for the position under the name of “Rez”, a famous Persian name according to his evidence. The applicant believed the assumption would be made that he is White. The applicant testified that the representative from human resources was quite hostile towards him; however the person from operations was very helpful and tried to assist him in answering the interview questions.

20The applicant testified the operations representative was named Joe. Joe Gullusci, the production supervisor, testified at the hearing and was the only person named “Joe” on an interview team at this time. The applicant stated Mr. Gullusci was not the person who interviewed him. Although there is some confusion as to the identity of the persons who conducted the applicant’s interview, nothing turns on this as no individuals are named in the complaint.

21The applicant testified that he had difficulty answering many of the questions. One question posed particular challenges. The applicant was asked what he would do if his partner who was working with him on an aircraft went to the washroom and did not return. Would he confront him, report him or report him to his union? The applicant said he would definitely not report his co-worker unless it was a safety issue: he would never report to his employer that his co-worker was slow or lazy. Although this question doesn’t follow the standard list of questions, it relates closely to the question about what a candidate would do if he/she saw someone on his/her team doing something that was against policy/procedure or regulation. It may well have been that the washroom incident was given as an example. After the interview, the applicant testified the human resources person did not have a friendly attitude towards him, but “Joe” was cooperative and friendly.

22One of the reasons the applicant came to the conclusion that his race was a factor in the respondent’s decision not to hire him was the nature of the questions asked during the interview. He thought the questions were irrelevant because they did not relate to aircraft assembly.

23The questions asked during the interview were designed to assess a candidate’s fit with the respondent’s work culture. Although “fit” can sometimes be a used to mask discrimination, it is not always so. Employers are entitled to assess how an employee will fit into a workplace culture provided objective and non-discriminatory criteria are used, based on actual characteristics and qualities and not presumptions and stereotyping. See White v. Queen’s University at Kingston, 2010 HRTO 640 at para. 30.

24The questions posed during the interview attempted to objectively assess the applicant’s work ethic in terms of teamwork, rigour/self-discipline, professionalism/judgement, innovation and leadership. There is nothing discriminatory about these questions. They did not favour the culture of any one group and were designed to provide an objective assessment of these skills devoid of assumptions and stereotyping.

25The applicant’s concern regarding the interview stemmed from the fact that it did not focus on his technical expertise and experience. There is a non-discriminatory explanation for that. The respondent was already satisfied the applicant had the required expertise. The purpose of the interview was to assess his “soft skills”. The applicant would likely have felt much better about the interview process if its purpose had been communicated to him. That being said, the interview did not discriminate against the applicant.

26Having determined that the interview itself was not discriminatory, I must decide whether someone no more qualified than the applicant and lacking his ground of discrimination (race, ethnic origin and place of origin) obtained the position.

27The challenge in this case is that 580 people were hired and no one has a specific recollection of the applicant. Given the number of candidates that were interviewed during the January 2006 hiring wave, the respondent did not keep any of the interview notes.

28Mr. Gullusci was on one of the interview teams for the January 2006 hiring. He testified that 75 to 80 percent of the people that he interviewed were “visible minorities” and 75 to 80 percent of the people hired were also “visible minorities”.

29The respondent provided its employment equity statistics for new hires in Toronto from 2006 to 2009. In 2006, 864 new employees were hired in Toronto. This included 580 employees hired in production in the January 2006 hiring wave. While there are no separate statistics for the January hiring, the numbers show that of the 864 employees hired in 2006, 357 self-identified as visible minorities. This represents more than one-third of all of the new hires. The number of visible minorities hired in production may well have been higher based on Mr. Gullusci’s evidence.

30The proportion of visible minority employees hired in 2006 is consistent with the employment equity data for the subsequent hiring years. By October 19, 2009, of 1,146 new employees hired in Toronto, 463 self-identified as visible minorities. This also represents more than one-third of the workforce. Therefore, in 2006 and today, more than one-third of the respondent’s workforce is comprised of visible minorities. Again, the percentage of visible minorities in production may be higher.

31Based on the consistency in the statistical data between 2006 and 2009, I can infer that at least one-third of the employees hired in production in January 2006 were visible minorities.

32When considering the highly diverse nature of the respondent’s workforce and its hiring practices in 2006, I do not accept that the applicant was excluded because of his ethnic background. By his own admission, the applicant struggled with the interview and believed the questions asked were irrelevant. The questions were not a mechanism for sifting out particular groups of employees. They were a legitimate way of assessing whether a prospective employee would fit within the respondent’s workplace culture.

33When considering the assessment process employed by the respondent, the number of individuals hired in 2006 and the demographic make-up of those employees, I conclude on a balance of probabilities that the applicant’s ethnic origin was not a factor in the respondent’s decision to hire him. The Application is dismissed.