Employer’s decision to withdraw offer of employment was informed by unconscious bias and discriminatory, B.C. Human Rights Tribunal rules

The Facts:

When her job offer was rescinded during the employer’s enhanced security screening process, a job applicant filed a complaint with the B.C. Human Rights Tribunal alleging that the decision by a government agency to withdraw the employment offer was motivated by discrimination on the basis of race and sex.

In 2018, the Independent Investigation Office of British Columbia (IIO), an independent, civilian-led oversight body whose mandate is to investigate serious incidents in the province where it appears a person may have died or suffered serious harm because of the actions or inactions of a police officer, ran a job competition to hire several new investigators. The recruitment process involved multiple steps, including completion of a written assignment and a “16 Personality Factor” questionnaire, as well as reference checks.

On May 14, 2018, the IIO asked DS, a legally-trained Métis woman who had applied for the position, to provide references, one of which was to be “a supervisor reference or equivalent.” DS requested that she not be required to include a reference from her current supervisor, explaining that she was uncomfortable jeopardizing her current employment without a firm job offer. The IIO accepted her references and, on May 24, 2018, it offered DS the position conditional on satisfactory completion of the enhanced security screening checks and obtaining RCMP Reliability Status clearance.

DS accepted the offer and received an information package from the Personnel Screening and Security Office (PSSO), the government department responsible for conducting the security screening of IIO employees. This information package again sought contact information for her current employer, prompting DS to request that the Director of Corporate Services, Vicki Yeats, e-mail the PSSO to confirm that DS was not required provide this information, which Yeats did.

On June 15, 2018, DS attended the polygraph examination, which took place in a small, windowless room and was conducted by an older, white, ex-police officer. When DS realized the session was being recorded, she expressed surprise and asked the examiner how the recording would be stored. He replied that it would be stored in his home office before it was eventually destroyed. DS claimed that when she questioned the adequacy of these measures, the examiner became visibly angry and that when she objected to his continuing with the examination before obtaining further information from human resources, he slammed his notebook down on the table, then rudely told her to leave and wait in the hall.

On June 18, 2018, DS wrote to Yeats and to Gayle Hogan, then-Chief of Investigations, stating she was “happy to reschedule” but also stating that she was “shocked at the low security afforded candidates” with respect to their personal information, adding that she was “not confident that such lax security measures are enough” and that “[e]ven accused individuals have more security and that privacy protections than IIO employment applicants.” She also requested a different examiner as she felt that the initial examiner would not be able to “put our interaction behind him.” In an e-mail response, an IIO HR assistant advised DS that her letter was being reviewed and asked DS for contact information for her current employer for the purpose of “employment verification.” DS responded that she was not required to do this, and attached Yeats’ e-mail to this effect. The IIO assistant responded that, although the information was not needed for a reference, it was needed as part of the security screening to verify employment. DS refused and provided a copy of her statement of earnings instead, stating in her e-mail that the IIO was “in breach of [its] undertaking” and had “reneged” on its agreement.

On June 29, 2018, Yeats e-mailed DS to confirm that the recording would be stored by the examiner for six months in a locked cabinet, and then destroyed at the IIO’s offices. She refused DS’s request for a new examiner, stating that the original examiner worked regularly for the IIO and that there had been no previous concerns about his performance. Finally, the IIO advised that it would accept DS’s statement of earnings as verification of her current employment. In turn, DS agreed to redo the polygraph on July 4, but asked to be provided with a copy of the recording and that the recording be stored at the IIO offices instead. The IIO replied that DS could request a copy of the recording through a freedom of information request, but that it would be inappropriate for it to store the recording onsite. In her response, DS stated that the IIO’s responses “appear to be arbitrary rather than sound policy that protects candidates’ privacy.”

In the meantime, on June 28, 2018, Hogan e-mailed a draft briefing note to Yeats and the chief operating officer (COO) of the IIO about considering revoking DS’s conditional offer of employment, noting that during the enhanced security process, “certain areas have risen to the level of serious flags of concern,” and referencing “interpersonal interaction with IIO corporate staff” and that things that had been “heard” about DS’s interaction with IIO support staff. Hogan also stated that, following the first interrupted exam, DS had tried to influence her to agree that DS did not have to take the polygraph exam.

On July 4, 2018, DS attended the second polygraph examination, and claimed that the investigator made several inappropriate comments, including that: women were better liars than men; asking her whether or not she had consumed alcohol prior to the test; and, during a discussion about her father’s diabetes, telling her that when he used to work as a police officer in Bella Coola, many Indigenous people were “obese and drank pop and ate potato chips.” Finally, DS claimed that, at the end of the test, after stating that there were no concerns with her answers, the examiner repeatedly asked her what she was thinking about when he asked her about illegal sex and drugs because her readings had “shot up.”

On July 5, 2018, Hogan sent a finalized briefing note to the Chief Civilian Director of the IIO recommending that the IIO withdraw its offer of employment. On July 17, 2018, the IIO received the PSSO’s screening report advising that DS had passed the security screening requirements, but also noting that DS’s history of dismissals suggested a “pattern of behaviour which may be a concern” to the IIO, that “[DS’s] written correspondence with the IIO and PSSO was adversarial in nature and suggests that [DS] may not be suitable for a position as an Investigator,” and recommending that the IIO “further consider [DS’s] suitability for employment before granting a security clearance.”

In a letter dated July 20, 2018, the IIO Director informed DS that the offer of employment had been rescinded, citing “serious concerns … regarding your communications and interactions with our office, and with the security screening process,” and characterizing her communication style as “overly adversarial and often disrespectful,” and her interactions with IIO support staff as “rude and demanding” and “well below the standard required of an investigator.”

On August 15, 2018, DS filed a complaint with the B.C. Human Rights Tribunal, alleging that the IIO discriminated against her in employment on the basis of race and sex. Section 13(1) of the Code provides in part that “[a] person must not (a) refuse to employ … a person … because of the Indigenous identity, race, … [or] sex … of that person.”

At the hearing, the IIO Director testified that, after his review of the screening report, he did not feel that DS possessed the qualities of being professional, measured, and constructive, as required for an IIO investigator, citing as the “most significant” issue concerns that her interactions with the IIO administrative staff were “inappropriate, demanding, [and] somewhat condescending,” and also opining that, as a trained lawyer, DS should should have understood the need to record the polygraph test. In his testimony, the polygraph examiner denied becoming angry or slamming his book on the desk, and stated that he told DS to wait in the hall because the room was small. With respect to the second exam, he testified that he had no recollection of making the comment about women being better liars; that his comment about Indigenous people being obese were not his own views, but the opinion of an Indigenous elder whom he had met; and that it was normal protocol to inquire about alcohol use prior to the test and to revisit questions where an examinee’s answers elicited strong responses.

The Arguments:

DS argued that the polygrapher’s comments to her were racist and sexist and demonstrated his stereotypical views of Indigenous women and that the decision to withdraw the offer of employment was connected to her sex and Indigeneity. In addition to maintaining that the polygrapher’s discriminatory views factored into the withdrawal decision, she submitted that the conscious or unconscious bias of those involved in the security screening process led them to interpret her concerns through the stereotypical lens of the “demanding suspicious brown/[B]lack woman,” and that this bias permeated the decision to withdraw the employment offer.

The IIO denied that its decision to withdraw the job offer was discriminatory and argued that DS had not established a connection between her protected characteristics and its decision to rescind the job offer, which was solely based on its assessment that DS would not be a “good fit” for the IIO investigation team due to her adversarial manner in her interactions with IIO staff in person and in writing. Regarding the polygrapher, the IIO argued that his comments were not sufficiently egregious to constitute discrimination, and that in any event its decision to revoke the offer of employment was not influenced by the results of the polygraph or the polygrapher, who had no contact with anyone in a decision-making role in this regard.

The Decision:

British Columbia Human Rights Tribunal member Shannon Beckett allowed the complaint, ruling that DS’s sex and race were a factor in the IIO’s decision to rescind the employment offer and awarded her lost wages as well as $15,000 in damages for injury to dignity.

Beckett began by setting out the three-part test established by the Supreme Court of Canada in Moore v. British Columbia (Education), 2012 SCC 61 (CanLII), as requiring the complainant to prove that:

1. she has characteristics which are protected by the Code,
2. she experienced an adverse impact in the area of employment, and
3. her protected characteristics were a factor in the adverse impact.

She further noted that, as set out in Armstrong v. BritishColumbia (Ministry of Health), 2010 BCCA 56 (CanLII), DS was required to show only that a protected characteristic was “a factor,” not a “significant” or “overriding” factor, in the adverse impact. She then set out the issues before her as whether the polygraph examiner’s conduct amounted to a “stand-alone breach of the Code,” and whether “DS’s identity as a Métis woman [was] a factor in the IIO’s decision to revoke the offer of employment[.]”

Turning to the first issue, Beckett noted that she preferred DS’s recollection of events as she was “deeply impacted” by the examiner’s conduct and thus “would be more likely … to remember the specific conduct.” In this regard, she found that the examiner had slammed his book and rudely asked DS to leave during the first exam, and had made the comments about women being better liars in the second. However, Beckett accepted the examiner’s evidence that it was typical to ask about substance use prior to a polygraph and to revisit questions that had elicited stronger responses at the end of a session. Turning to whether the examiner’s conduct constituted discrimination, Beckett accepted that “not all offensive or inappropriate behaviour will rise to the level of breaching the Code,” and observed that “[w]here inappropriate behaviour occurs during a single incident, or does not amount to a pattern of conduct, the Tribunal will consider the full context of the conduct to determine whether it violates the Code.” In this respect, emphasizing that intent is not required and that the focus is on the impact of the conduct on the complainant, Beckett held that, in light of the surrounding circumstances, the examiner’s conduct had a “significant impact” on DS based on her identity as a Métis woman, amounting to a standalone contravention of s.13 of the Code, reasoning:

The involved parties in the present case are an Indigenous woman, who was undergoing a highly personal and by all accounts upsetting examination, and a white, male, ex-police officer, who was conducting the examination. In both … [p]olygraphs, there was a significant power imbalance at play. … [D]espite his evidence that he was not in a position to decide whether a candidate was hired or not, [the examiner] had the power to influence whether DS passed the security screening portion of the recruitment process, and, by extension, he had the power to influence whether or not DS would get the job with the IIO.

Moreover, regardless of the intent behind the questions regarding alcohol and sex or drug use, Beckett accepted that these questions “negatively impacted DS by making her feel like she was being stereotyped as someone more likely to drink, do drugs, and engage in illegal sex,” noting that the examiner did not explain the reasons for his questioning. She also held that whether the comment regarding obesity was an anecdote from another individual or the examiner’s own view, the impact was the same, opining that both this and the comments about women being better liars engaged “insidious stereotypical views of Indigenous people,” and “created an environment in which DS was reminded of the ways in which Indigenous women have historically been viewed and devalued.”

Turning to whether DS’s identity as a Metis woman was a factor in the IIO’s decision to revoke the offer of employment, Beckett first found that DS had not established that the examiner had influenced the decision, as there was no evidence of any communication of personal opinions between him and the IIO. Turning to the IIO’s decision and citing Campbell v. Vancouver Police Board (No. 4), 2019 BCHRT 275 (CanLII), Beckett emphasized that “racial discrimination ‘is most often subtle and pernicious,'” and often requires the Tribunal to draw an inference of discrimination based on the surrounding circumstances, which in this case included an understanding that “for Indigenous people generally, there are significant potential consequences attaching to the collection, use, and disclosure of their personal information,” and that the “Tribunal’s recognition of the historically fraught relationship between Indigenous people and police….”

Assessing the evidence, Beckett found no factual basis for Hogan’s assertion that DS was trying to get out of taking a polygraph test, opining instead that Hogan’s reaction was “evidence of DS being viewed with suspicion and as non-compliant.” As well, although she accepted that DS’s strong reaction to the issue of how her personal information was stored was adversarial in tone, Beckett noted that her reaction was informed by DS’s concerns as an Indigenous woman, and was critical of the IIO’s failure to consider this possibility, including its perfunctory dismissal of her request for an alternate examiner, and the Director’s testimony, which demonstrated that he had not considered “how, as an Indigenous woman, DS’s experience with the polygraph exam may have differed from his own experience.” Beckett also found that DS’s ongoing concern about the lack of security in storing her information and the IIO’s inconsistent responses regarding contacting her current employer were understandable. Thus, although accepting that the IIO had legitimate non-discriminatory concerns regarding DS’s use of strong language and expressions of mistrust of the IIO in her communications, as well as her negative interactions with support staff, Beckett determined that DS’s race and sex were factors in the decision, which was sufficient to engage s.13 of the Code, stating:

[It is] more likely than not that the IIO viewed DS through the stereotypical lens of a demanding, suspicious Indigenous woman, and that these views informed the decision to rescind the job offer. The IIO’s concerns about DS’s conduct in the enhanced security screening process that led it to rescind the offer, began with the view of DS as demanding, suspicious, and non-compliant…. Apart from the fact that DS did have a heightened concern, as an Indigenous woman, about the security of her personal information, this view of DS was not grounded in the evidence, and is explained by stereotype.

Moreover, Beckett observed that rather than approaching DS “from a place of understanding the power imbalance between DS, a female, Indigenous applicant, and [the examiner], a white, male, ex-police-officer administering an exam which could prevent DS from attaining the job,” the IIO failed to consider that DS’s concerns were “consistent with the stereotype of the demanding, suspicious Indigenous woman.” She was similarly critical of the IIO’s changing position regarding contacting DS’s current employer, despite its acknowledgment that Indigenous people face systemic barriers to employment and that DS had expressed this concern.

Turning to remedy, Beckett awarded DS $36,812.48, representing the wages that she would have earned during the six-month probationary period, finding that “but for” the discrimination, DS would have been hired, and $15,000 in general damages for injury to dignity, considering that the discrimination was “significant and fairly long lasting,” and that DS was in a vulnerable position as a “female Indigenous applicant, who was experiencing precarious employment, and who faced systemic barriers to employment related to her Indigeneity.”

In the result, although noting that she “accept[ed] that the IIO believed that DS lacked key qualities and was not a good fit for their team,” and that “the IIO had a basis for its belief,” Beckett added that “the lens through which the IIO made and held onto to its belief was informed by stereotypes about DS as an Indigenous woman,” and was thus discriminatory.

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