Canada Post denied worker’s application to leadership program because spouse was superintendent; was adverse treatment based on marital status
A Canada Post employee who was denied participation in a leadership development program because of conflict-of-interest concerns with her superintendent husband was discriminated against based on marital status, the Canadian Human Rights Tribunal has ruled.
Jessica Stanger was hired by Canada Post in Calgary in 1989. Two years later, she transferred to Victoria to work as a postal clerk there. In 1999, she suffered an injury outside of work that resulted in two bulging discs in her neck. Because of this injury, Canada Post deemed Stanger to be “permanently, partly disabled” (PPD) employee.
Stanger’s PPD status involved restrictions that limited how much she could lift and carry, and limited standing for a maximum of two hours. Canada Post placed her in a graduated return-to-work program from 2002 to 2004, after which she was assigned to the Communication A section in Victoria.
At one point, Stanger was married to one of her co-workers but separated from him in 2003 and divorced him in 2004. Shortly thereafter, she began a romantic relationship with her shift superintendent. They soon began living together and married in 2008.
Employee wanted to pursue management opportunities
In January 2008, Stanger applied for a leadership development program offered by Canada Post the following month to recruit and assess employees for promotion to supervisory positions. The program was usually run once or twice a year in the Pacific region, according to staffing needs. Stanger’s manager declined to approve Stanger’s application with the comment: “Jessica would potentially be a good candidate if her personal situation was different or if she were to work in another facility. Her husband is shift #3 (Stanger’s shift) operations superintendent and there is a high likelihood of conflict of interest.”
The manager met with Stanger and explained that the only supervisor position available in Victoria — or on Vancouver Island — was one that would put her in a direct conflict of interest situation with her husband. The manager said there were positions available in Vancouver, but reported that Stanger said no. Stanger testified that she was willing to relocate at the time.
Stanger submitted her application to the HR officer in Vancouver, who recommended it be approved and, if Stanger was successful, she could be put on a waiting list for a position that wouldn’t report to her husband. The acting director of human performance management agreed, so Stanger’s manager reversed her decision and approved the application. However, by this time it was March and the program had already run, so Stanger was placed on a waiting list.
A short time later, Canada Post decided to contract with an external company to run the process for supervisor recruitment. It cancelled its own program and Stanger’s application was never considered.
Stanger filed a complaint claiming discrimination based on family status as a result of Canada Post’s failure to accept her into the leadership development program. She also claimed discrimination based on her disability because of multiple incidents where co-workers complained about her inability to do certain tasks on the duty rotation, leading to supervisors re-assigning and removing her from certain duties.
The tribunal noted that the Canadian Human Rights Act (CHRA) doesn’t define “marital status.” However, it found that past jurisprudence supported the concept that “marital status discrimination can be a relative construct, in the sense that an individual’s marital status can be determined by looking at his or her current conjugal living situation and relationship with one’s partner.” As a result, someone can be discriminated against if she experiences adverse treatment based on a conjugal relationship outside of marriage and CHRA protection doesn’t apply only to a “legally solemnized marriage,” said the tribunal. Therefore, Stanger’s relationship status granted her entitlement to protection from discrimination well before her 2008 marriage.
Conflict of interest concerns taken too far
The tribunal found that Stanger was prevented from enrolling in the leadership development program — and therefore access to a significant employment opportunity — because of her relationship with the shift superintendent. Though Canada Post didn’t want her in the position that would report to her husband, the corporation eventually acknowledged that she could take enter the program with the expectation she could apply for another managerial position if one became available. However, because Stanger’s application was unnecessarily delayed, she missed her chance at participating. She was “differentiated adversely based on her marital status,” which had an adverse impact on her, the tribunal said.
The tribunal also found that Canada Post didn’t demonstrate a bona fide occupational requirement as to why Stanger couldn’t have been accommodated by having her application for the leadership development program approved and managing the conflict of interest if it came up. In addition, the tribunal pointed out that Stanger participating in the program would not have caused a conflict of interest, only her taking the managerial position available at the time would have.
The tribunal noted that Stanger’s manager incorrectly assumed that declining Stanger’s application was the proper way to implement Canada Post’s conflict-of-interest policy and the corporation tried to remedy the error, but by then it was too late and the effect of the decision — to deny Stanger participation in the program starting in February — couldn’t be reversed.
The tribunal found that the decisions to remove Stanger from certain duties were not made because of her disability or co-workers complaining about her PPD status, but instead for staffing or health and safety reasons. Such reasons were not adverse differential treatment, said the tribunal.
The tribunal also found that Canada Post tried to investigate Stanger’s harassment complaints, but she refused to co-operate, as she insisted the corporation make a written request for her to submit a written complaint. Though Canada Post outlined the information it needed, Stanger didn’t respond.
In addition, Canada Post trained its employees in human rights awareness, had a code of conduct, a no harassment policy, and a human rights and workplace conflict program for employees. Given these factors and Canada Post’s attempt to investigate Stanger’s harassment complaint, there was no evidence Stanger’s workplace was poisoned or unsafe, said the tribunal.
The tribunal determined that Stanger was discriminated against based on her marital status when her leadership program application was initially denied, but not from the occasional re-assignments. As Stanger had not yet made submissions of her claimed financial losses, damages were to be decided at a later date.
For more information see:
•Jessica Stanger v. Canada Post Corporation, 2017 CarswellNat 2512 (Can. Human Rights Trib.).
