Transsexual wins case against bank

Canadian Human Rights Tribunal says National Bank of Canada was guilty of sex discrimination when it didn’t hire a Quebec woman who used to be a man
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|hrreporter.com|Last Updated: 08/03/2004

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Quebec transsexual has won her case against the National Bank of Canada after it refused to hire her as a call-centre worker.

The Canadian Human Rights Tribunal ruled the bank discriminated against Micheline Montreuil when it refused to hire her at its Montreal call centre because it feared she would use the position to act as an ambassador for the transgendered in the workplace.

Montreuil lived most of her public life as a man under the name of Pierre Montreuil. hat changed in 1997 when she said she was dismissed from her job as a teacher in Quebec City after being spotted at a shopping mall dressed as woman. t that point she decided to ditch her male identity, become a woman and move to Montreal. She responded to a job posting placed by the bank in a Montreal newspaper on May 2, 1998. It was looking for call-centre staff on a part-time basis with the eventual possibility of full-time work. The wage was listed at $10 per hour.

Candidates were required to have at least a high-school diploma, be bilingual and have experience in customer service or sales. The ad also noted that the bank was offering an opportunity for a career path commensurate with the employee’s skills, as well as ongoing training, a nice working environment and a competitive wage scale. Montreuil had a broad and varied academic and professional background. She is a member of the Bar of Quebec, has a master’s degree in business administration and a diploma d’études supérieures in human resources and organization from the University of Paris. In 1981 she successfully completed the securities course offered by the Canadian Securities Institute. She also worked as a management consultant, taught numerous courses at the University of Quebec and several colleges, owned and operated a restaurant and served in the Canadian military. She is also the author of numerous publications, including several articles involving the banking industry.

This article is reprinted from Canadian Employment Law Today, a bi-weekly newsletter that focuses on legal issues employers need to know about. For more information about the newsletter, click here.

She sent in her resumé and other personal information in response to the ad. The bank responded to her application and set up an interview for May 22, 1998. At the first interview she was required to fill out an application. In accordance with the bank’s employment equity policy, a selfidentification questionnaire was given to her to fill out. Although not identifying herself as being a member of any of the designated groups listed — aboriginal, visible minority or disabled — she wrote in, under the heading “other”, that she was transgendered. She passed the first round of interviewing and was moved to the second stage, at which point Montreuil was asked why she was interested in taking an entry-level position based on her career history.

She said that, as a lawyer with qualifications in the banking and securities field, she hoped to be able to advance relatively quickly in the bank, perhaps becoming a member of the litigation branch after a few years. She was told that to be able to rise up the ranks she would be required to remain in the entry-level position for up to two or three years. Montreuil said that was fine. Montreuil said it was obvious from her physical appearance that she was not born a woman.

To ensure there would be no misunderstanding, she asked in a frank manner whether her status created a problem. The bank said no, and that it maintained a non-discrimination policy with respect to its hiring practices. At this point Montreuil gave the woman interviewing her a one-page document entitled

Firms that officially accept ‘Transgendered.’

It contained a list of multinational companies that had adopted liberal and open policies. She said she gave the document to the bank to reassure it that it would not be alone in adopting an open policy towards transgendered persons. But the bank employee viewed it in a much different light.

She wondered whether Montreuil genuinely wanted to work as a call-centre employee or whether her true intention was to get herself hired and then set about promoting the integration of transgendered persons in the organization. But Montreuil was never confronted with this by any bank employee. On Aug. 12, 1998, Montreuil was invited for a third and final interview. Following that interview, she heard nothing either way from the bank in regards to a hiring decision. On Sept. 10 the Quebec Superior Court issued a judgment involving her — that had nothing to do with her application at the bank — that made headlines across the province.

The court upheld a decision by the Société de l’assurance automobile du Québec to delete the name “Micheline” from her drivers licence. Two Quebec City newspapers published details of the judgment that morning, and Montreuil appeared on numerous radio stations and television talk shows. Publicity surrounding her name-change case continued and on Oct. 7 her story was featured on the front page of a Montreal newspaper. During this time she never received any word from the bank on the status of her application. On Oct. 14 she went to the office where the third interview had been conducted and was told she would have a reply in writing by Oct. 19. In the meantime the job ad for call-centre workers at the bank continued to run in the newspaper.

In November she received a letter from the bank — addressed to her old, male name — stating she did not get the job because her qualifications did not meet the requirements. She was offended at the use of her former name, and refused to acknowledge the letter because it hadn’t been addressed to her. By March 4, 1999, she had written at least three more letters requesting information about the status of her job application. On March 16, she received a letter — addressed to her — from the vice-president of human resources. It noted that a response had already been sent to her in November and the bank considered the file closed. Montreuil filed a complaint with the Canadian Human Rights Commission. The tribunal found Montreuil had a prima facie case — meaning, essentially, that there was enough evidence to support her claim of discrimination.

That meant the onus fell on the bank to prove it did not discriminate against her based on sex. The bank said there were three main reasons it decided not to hire Montreuil: •she was overqualified for the position; •her attitude during the final interview was not that of a person who wished to serve the public, but was rather one of a person who is self-centred and condescending; and •her real motive for applying was to use the position to promote the rights of transgendered persons. The tribunal found the bank’s position on her qualifications to be unreasonable because Montreuil repeatedly said she was looking to make a change in her life and would stay in the position as long as required before seeking a promotion.

Furthermore, the tribunal said the risk of Montreuil leaving was hardly worse than other staff because of the high turnover rate among call-centre workers. Most of the employees are students and a good number of them typically do not remain in their positions for two years. The tribunal also dismissed the argument that Montreuil’s real reason for seeking the job was to become a pioneer who would make her condition publicly known. Santos Alborino, the vice-president of human resources, testified he believed she was seeking a platform to advance a personal interest and that there was no room for such personal activity at the bank. The tribunal found that neither Alborino, or any other witness, was able to make a case for how she would use a call-centre position as a platform for the rights of the transgendered.

“The (bank’s) concerns appeared to basically centre on her motivation for the job while the interest of other… employees, such as university students, supposedly lay in performing the job’s tasks and receiving a salary in return, (Montreuil’s) interests would somehow lie elsewhere,” wrote Athanasios Hadjis, a member of the tribunal, in his decision Hadjis said he found that idea “troubling.” “If indeed (she) attaches some importance to the fact that she may be the first openly transgendered person to be hired by the (bank), or any other Canadian bank for that matter, does this imply that her dedication to the job should be put in question, that her sincerity should be doubted?

The advancement of human rights has been achieved over time through the actions of many individuals who have made great efforts and sacrifices in order to break through barriers,” he wrote. He said the bank’s rationale would mean employment would be denied only to a member of the designated group (in this case, transgendered persons). By doing so, it is effectively treating, as a factor in its decision not to hire, the candidate’s status as a member of the designated group. “It falls to reason that a similar job applicant who lacks the distinguishing feature that is the (essence) of the human rights complaint would not be denied the same employment opportunity on this basis,” said Hadjis. “What is more disturbing … is that the (bank’s) decision was based solely on its perception that (she) would act in what it considered an unacceptable fashion, without ever testing that perception by questioning (her) directly on the topic.” He said the bank’s second argument for not hiring her — her condescending tone, though questionable, is irrelevant because he had already found discrimination exists.

For there to be a finding of discrimination, it is sufficient that the discrimination be “a” basis for the employer’s decision. It need not be the only reason. Hadjis also said he didn’t doubt the bank’s sincerity, and doesn’t believe its representatives demonstrated any intent to discriminate against Montreuil. “I have no reason to doubt their declared sense of openness with respect to her transgendered status,” he said. “It is settled law, however, that intent to discriminate is not a pre-condition to a finding of discrimination.”

No order has yet been made as to remedy. During the hearing Montreuil asked the tribunal only to determine the question of liability. In the event that the parties do not reach an agreement, the tribunal still has jurisdiction and an additional hearing could be set up to determine the remedy for this case.

This article is reprinted from Canadian Employment Law Today, a bi-weekly newsletter that focuses on legal issues employers need to know about. For more information about the newsletter, click here.

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