When immigrants claim discrimination (On law)

Being too skilled for an entry-level job isn't a good enough reason for an employer to dismiss an applicant

A couple of recent human rights rulings have shed some light on the problems skilled immigrants are having when they come to Canada. The first ruling, while not an employment decision, is of interest because it gives an example of legitimate discrimination.

In Agduma-Silongan v. University of British Columbia, the British Columbia Human Rights Tribunal addressed whether the admission requirements of the University of British Columbia’s master of health science program was discriminatory. The complainant was a licensed surgeon in Germany who had first been granted a license to practice medicine in the Philippines and had won the outstanding intern award at the Philippines Medical Centre, the largest hospital in Asia.

When she applied to the masters program at UBC, she was initially denied admission. That’s because, according to the university, her international credentials were not the equivalent of domestic credentials. Eventually, however, she was accepted on a provisional basis, conditional upon her maintaining an overall average of at least 74 per cent, of which 12 credits had to be at first-class standing. And all of her grades were expected to be above 74 per cent in the first term of her program. The conditions needed to be satisfied by April 30, 1995.

The complainant argued the distinction made between international and domestic students was discriminatory. She also argued that the distinction made by the university between students from the Philippines and domestic students was discriminatory because it required an additional degree. Further, she argued the university failed to account for certain factors specific and unique to herself.

Relying on the Supreme Court of Canada’s 1985 decision in O’Malley v. Simpsons-Sears Ltd., the tribunal placed the initial onus to establish discrimination on the complainant. Then, once established, the burden shifted to UBC to lead credible evidence of a non-discriminatory reason for its conduct or to establish a legitimate and reasonable justification.

The tribunal sided with UBC and found there was no discrimination.

“While UBC treats internationally credentialed students differently than domestically credentialed ones, it does not do so based on assumptions about differences between educational systems around the world, but based on actual information garnered from a large number of resources about the relative merits of worldwide educational systems,” the tribunal said. “In setting the country credential standards, UBC considers recognized research materials, participates in national and international discussions and training and considers its own ongoing experience with internationally credentialed students to first set, and then refine, its country standards.”

The tribunal concluded that students with domestic credentials are distinct from students with international credentials, and that assessing international accreditation is necessary to fairly consider both domestic and international students for admission to the program.

The Sangha decision

The ruling stands in contrast to Sangha v. The Mackenzie Valley Land and Water Board. A federal human rights tribunal ruled an overqualified immigrant candidate, Gian Sangha was discriminated against when he was not hired for the entry-level job for which he applied. The tribunal found the company’s rejection imposed a penalty or restrictive condition that was not imposed on other members of the workforce due to a special characteristic of the immigrant candidate.

Sangha, an environmental scientist from India, was also a former university professor with a PhD from a German university.

The employer had previously posted an advertisement for four regulatory officers requiring an undergraduate degree in science or environmental studies or a post-secondary diploma in environmental management. Sangha was the only one of 38 applicants who had a post-graduate degree. The evidence demonstrated that one of the persons interviewing for this position did not want to further interview Sangha because she felt he would become bored with the job given his credentials and experience.

Although Sangha’s interview scores placed him higher than most of the other candidates, the agency refused to make him an offer. When Sangha discovered this, he became depressed. He was able to land a job as a landscape gardener and as a bookkeeper at an electric company.

The agency led with evidence that people who were mismatched in their jobs tended to leave them, and that this was the reason for choosing not to offer Sangha the job. However, the tribunal found the agency had acted in a discriminatory manner and awarded $9,500 for pain and suffering.

Lessons for employers

Many immigrants are highly educated. While it may be the case that someone who is higher educated and more skilled may tend to become bored in entry-level jobs, Sangha sends the message that this is not a good enough reason for rejecting him. Therefore, employers will want to be extremely careful in their reasons for rejecting candidates.

Employers will want to consider formal job postings in which the position and qualifications are clearly defined, and widely circulated, as opposed to informal postings of a general nature.

In the interview process, obviously, those who conduct the interviews cannot rely on assumptions and perceptions of what the candidate will or will not do. It is particularly important that those who conduct the interviews be educated as to questions that may be asked and not asked during the interview. Questions should be based on the objective requirements of the job, not on subjective considerations. Job requirements must be reasonable and bona fide and all prior experience and qualifications should be assessed regardless of the country in which it was obtained.

Interviewers should also keep detailed notes from the interview for at least six months if the employer falls under provincial jurisdiction or one year if it is federal.

Natalie MacDonald is a partner with Grosman, Grosman and Gale, a Toronto-based law firm specializing in employment law. She can be reached at (416) 364-9599 or [email protected].

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