Not far enough
Alberta engineering certification case shows one can never be certain how far accommodation efforts must go
Mar 18, 2014
By Jeffrey R. Smith
Accommodation and discrimination in employment can be tricky things for employers to manoeuvre. Across Canada, human rights legislation has a legitimate purpose by ensuring people are treated fairly in society and in things like employment. The latter is particularly important because people rely on their employment to support themselves and if they aren’t given a fair shake, it’s harmful to the individuals and, some might argue, society as a whole.
Human rights legislation outlines what grounds people can expect to be protected from discrimination — grounds such as race, colour, place of origin and religion, among others. And much of what can constitute discrimination is obvious for employers and other organizations relating to employment. However, sometimes it’s not so obvious and what might be considered legitimate standards are in fact discriminatory and what was thought to be appropriate accommodation doesn’t turn out to be enough
The Association of Professional Engineers and Geoscientists of Alberta (APEGGA) found itself in such a position when an engineer whose education and qualifications were from the former Czechoslovakia filed a human rights complaint after the association didn’t accept his credentials on par with Canadian qualifications and required him to write extra confirmatory exams and gain Canadian experience. One of the institutions from which the engineer had received a degree was on a Canadian equivalency list but another was not, and there was no equivalency agreement with either the Czech Republic or Slovakia.
While APEGGA felt it was living up to its responsibility to protect its profession and public safety by making sure applicants for certification met Canadian requirements, an Alberta Human Rights Tribunal adjudicator found APEGGA’s standards hung international applicants out to dry without much assistance.
As it turned out, the equivalency list only included institutions with openly available information on the Internet, and wasn’t updated. APEGGA didn’t investigate the possibilities for accommodating the engineer by a more in-depth investigation of his educational background. The adjudicator also found the extra exams were a “one-size-fits-all” approach that didn’t account for applicants’ individual qualifications. The engineer, and all international applicants, were denied individual assessments and instead had to overcome barriers because of their international credentials. This was discrimination based on place of origin, said the adjudicator: Mihaly v. The Association of Professional Engineers, Geologists and Geophysicists of Alberta, 2014 AHRC 1 (Alta. Human Rights Trib.).
Keeping a high standard of professional qualifications is important for a professional organization like APEGGA that’s responsible for certification of an industry. And it makes sense that measures have to be taken to ensure candidates from other places meet the standards in Canada. And, like in other employment situations, accommodation should be made to the point of undue hardship. But what should be considered undue hardship in the case above?
APEGGA had made efforts to determine the credentials of international applicants through several agreements with various countries — of which the country of origin of that engineer was not a part of — and another list of institutions that had been assessed against Canadian qualifications. But should it be expected to investigate every international institution that an international applicant has attended?
The association probably thought that the efforts it had made were sufficient to accommodate international applicants and requiring them to write extra assessment exams where credentials were uncertain wouldn’t be too much to ask. Unfortunately for APEGGA, it was wrong.
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Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective.