‘Deemed qualification’ provision not discriminatory: Arbitrator

Union said provision allowing workers to skip assessment discriminated against certain applicants

An Ontario employer’s collective agreement provision requiring  employees to have a certain amount of service time to skip the evaluation process for internal job postings was not discriminatory against new mothers, an arbitrator has ruled.

The City of Toronto’s collective agreement with its union, the Canadian Union of Public Employees (CUPE) Local 79, enshrined a process for determining qualifications of existing employees for posted positions. The agreement stipulated that if an employee performed the duties of a posted position for at least a year, and had performed those duties within the last six months, then the employee would be “deemed qualified” for the position.

Employees who weren’t deemed qualified for a position under the collective agreement provision had to proceed through the normal screening process.

In January 2014, the city posted the position of "early childcare educator 2." There were 26 positions for that job description available. Two weeks later, the city closed the posting after receiving 196 applications, including that of Marisa Manini.

Manini had worked as a part-time early childcare educator 2 from 2005 to February and had worked on a temporary full-time basis in the position since then. She went on maternity leave from September 2010 to September 2011 and again from May 2013 to May 14, 2014. It was while she was on this second maternity leave that she applied for the permanent full-time position.

Though Manini had worked as a childcare educator for several years, she wasn’t deemed qualified because she hadn’t met the second criteria for such a determination, as she had been on maternity leave for seven months prior to the posting and hadn’t worked.

She was put through the normal screening process, where she scored 81 per cent on the written assessment and 71 per cent on the interview assessment, making her a successful candidate. However, she was 47th on the eligibility list based on seniority, so she didn’t get one of the 26 available positions.

Despite the fact Manini successfully completed the screening process, CUPE filed a grievance on her behalf arguing the “deemed qualified” provision requiring employees to have worked in the position for the past six months was unfair for female employees who took maternity leave, which constituted discrimination on the basis of sex or family status.

CUPE requested that the collective agreement provision in question be “read down” to avoid such discrimination.

The union pointed to other provisions in the collective agreement that required the city to consider applicants for posted positions “on the basis of any or all of the following factors: seniority, education, training and work experience, ability and appraisal of past performance.”

In addition, the collective agreement protected the seniority and service of employees away from work on pregnancy or parental leave and the Ontario Human Rights Code prohibited discrimination on the basis of sex and family status — defining family status as “being in a parent and child relationship” and stipulating “the right to equal treatment without discrimination because of sex includes the right to equal treatment without discrimination because a woman is or may become pregnant.”

CUPE added that the “deemed qualified” provision adversely impacted women on pregnancy or maternal leave for longer than six months and these women constituted a group defined by sex or family status.

The city argued that neither Manini nor other women on pregnancy leave were being excluded from job competitions because of the “deemed qualified” provision, but rather they just failed to meet the criteria for bypassing the need to demonstrate qualifications through the usual assessment process for a position.

Arbitrator weighs in

Arbitrator Russell Goodfellow found that the purpose of the benefit provided by the collective agreement provision was to allow certain employees to skip the assessment process for positions posted by the city. This right to be “deemed qualified” was not a status-related benefit, but rather a work-related benefit — in recognition of actual work performed, not “an incident of the employment relationship or a product of employee status or the passage of time,” said Goodfellow.

He also found that though the benefit conferred in the “deemed qualified” provision excluded a group of people identified by a prohibited ground of discrimination — as defined in the code — this exclusion was “reasonable and bona fide in the circumstances” because it was related to employees doing the work of the position in question.

In addition, both the city and CUPE agreed to the two criteria to allow employees to bypass the assessment process — one involving overall experience and one involving recent experience.

Goodfellow noted that to grant CUPE’s request to “read down” the provision would take pregnancy and parental leave out of the equation, resulting in “some lengthier period” for the recent experience criteria. This would involve “changing the otherwise legitimate work-related requirement to achieve the work-related benefit.”

However, the city is “not required to abandon the standard,” he said, and treat employees on pregnancy or parental leave “according to some different standard.”

Goodfellow also pointed out the city’s emphasis on the fact that the “deemed qualification” provision was an alternative to the assessment process for employees who met the criteria. Neither Manini nor any other employees in her situation were excluded from the assessment process, they just couldn’t bypass it because of their lack of recent experience.

In fact, Manini was still a successful candidate when she passed the tests and would have gotten the position if she was higher on the seniority list.

Goodfellow found the “deemed qualification” provision was not discriminatory against employees on pregnancy or parental leave for longer than six months and dismissed the grievance.

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