Overqualified jobseeker wins discrimination case

Tribunal says recruiting practice more likely to affect immigrants

An environmental scientist from India who was rejected for an entry-level job in his field has succeeded in challenging the common HR practice of rejecting overqualified applicants.

Gian Sangha’s victory at the Canadian Human Rights Tribunal signals to recruiters and human resource professionals that they had better be careful about rejecting job candidates they think are overqualified.

“When an employer… adopts a rule against the hiring of overqualified candidates, it may appear to be ‘neutral’ in that it applies equally to all overqualified candidates (immigrant and native-born),” wrote tribunal chair Grant Sinclair.

“And yet it has a discriminatory effect upon overqualified immigrant candidates. It imposes, because of some special characteristics of the group, penalties or restrictive conditions not imposed on other members of the workforce.”

The ruling involved the Mackenzie Valley Land and Water Board in the Northwest Territories, a government agency. In 2001 it posted an ad for four regulatory officer positions, jobs that require an undergraduate degree in science or environmental studies or a post-secondary diploma in environmental management.

Sangha, a former university professor in environmental science who held a PhD from a German university, was one of 38 applicants and the only one with a post-graduate degree who made it to the interview stage. One member on the interview committee didn’t want to interview Sangha. She felt that, given his credentials and his experience, he would quickly become bored with the job.

Despite the fact that interview scores placed Sangha higher than most of the other candidates, the committee unanimously decided not to make him the offer. When Sangha found out, he became depressed and took anti-depression drugs. He worked as a landscape gardener for about six months. Then, in March 2004, he found work as a bookkeeper at an electric company run by family friends and stopped seeking work in the environmental science field.

In an interview with Canadian HR Reporter, Sangha said he was convinced the only reason he didn’t get the job was discrimination. He also dismissed the idea that he would not have stayed long.

“Why would I leave it? The pay could have been up to $60,000 (a year),” said Sangha. “I was making between $11 and $12 (an hour) where I was. Why would I leave it?”

Adverse effects

The tribunal heard from University of Toronto sociology professor Jeffrey Reitz, who gave expert evidence on how immigrants fare in Canada’s job market. In recent decades, Reitz told the tribunal, newcomers to Canada have tended to be highly educated, especially as the majority of them fall under the independent or economic immigrant class, people selected by a points-based system that favours those with university degrees.

Despite their credentials, recent immigrants face a number of barriers to employment at their levels, Reitz noted. A number of factors contribute to the barriers, including a lack of knowledge by employers when it comes to foreign education and credentials, discriminatory hiring practices and a lack of social contacts. As a result, many immigrants are forced to look for jobs at lower levels.

The argument for rejecting overqualified workers

Though the employer testified it no longer screens out overqualified candidates, it did bring in a recruiting expert to defend the practice. Derek Chapman, an associate professor in industrial and organizational psychology at the University of Calgary, said screening out overqualified candidates is a common method of finding the best candidate.

People who are mismatched with their jobs are more likely to leave, to demand higher wages and to be difficult to manage as they may feel disgruntled about answering to people with fewer credentials, he told the tribunal. What’s more, they’re more likely to experience anxiety and depression, Chapman said.

But the tribunal sided with Reitz and awarded Sangha $9,500 for pain and suffering. The ruling sends a message to employers that they have “to develop hiring and promotion practices that are open, objective and do not make assumptions about why a person is applying for a particular job,” said lawyer Harold Caley, a partner at Toronto firm Caley Wray.

Although this ruling is not necessarily binding on other cases, “if it is a well-reasoned decision it will normally be followed by subsequent decision-makers,” Caley added.

However, Paul Fairweather at the Vancouver law office of Fasken Martineau criticized the decision for failing to look at whether the practice is a “bona fide occupational requirement.”

He referred to Meiorin, a leading workplace human rights case involving a female firefighter who was dismissed for failing to pass a physical fitness test. The Supreme Court of Canada began its analysis in Meiorin by recognizing the fitness test had an adverse impact on women, but it went on to examine whether it was a bona fide occupational requirement.

“The difficulty that the Supreme Court had with that was not the fact that there was a standard, and frankly not the fact that the standard would impact women more harshly than it would men,” said Fairweather. “The difficulty was the standard couldn’t be justified.”

If a rule is a bona fide occupational requirement, said Fairweather, it will withstand review regardless of whom it affects.

But Mark Hart, a Toronto lawyer specializing in workplace human rights cases and a partner at Sanson and Hart, said the tribunal in the Sangha case was right in its analysis. “The so-called reasons why overqualified candidates are screened out are based on assumptions rather than actual concrete evidence. They made those assumptions without even putting them to Mr. Sangha in the interview.”




Lost in transition
From professor to bookkeeper

In the 1990s, Gian Sangha was an associate professor, teaching courses in ecology, conservation and land use at Punjab Agricultural University.

When he saw newspaper ads stating educated professionals were wanted in Canada, he came to Vancouver to check out his job prospects. His contacts in the field encouraged him to come, he said. Given his teaching experience in India, his PhD and work experience for the German federal government, he shouldn’t have a problem, they told him.

Once he arrived in 1996, he found his lack of experience in Canada was an obstacle. To overcome this, he said, he volunteered with the Langley Environmental Partners Society, which was working on watershed restoration. He then found several contract positions, including one as assistant professor of environmental studies at St. Cloud State University in Minnesota. When that contract was over, he returned to Vancouver. After being rejected by Mackenzie Valley, he worked as a landscape gardener. Since March 2004, he has worked as a bookkeeper for an electrical company and stopped looking for work in his field.

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