Continued
Employee turnover is a particular issue in Canada’s north, and it’s one of the reasons the MVLWB prefers northern experience. Ironically, it seems that the Board’s candidate selections failed to improve turnover. Most of the RO positions became vacant within three years, as the incumbents moved on to other opportunities or left the north. In Dr. Sangha’s case, his lack of northern experience was not the criterion on which his candidacy was rejected.
In considering the case, the Canadian Human Rights Tribunal said that for Dr. Sangha to prove discrimination, he had to show that he possessed the basic qualifications for the job; he is a visible minority immigrant; he is overqualified vis-à-vis the job in question; the overqualified status was one of the reasons why he was not hired; and there is a correlation between visible minority immigrant status and overqualified status.
The Tribunal easily found that Dr. Sangha had proven the first four points, and in bringing the case forward, the Canadian Human Rights Commission relied in large measure on opinions provided by Dr. Jeffrey Reitz, a University of Toronto professor who is an expert in the area of ethnic, immigration and pluralism studies. Dr. Reitz outlined several supporting conclusions about the immigrant labour market based on data from the Census and the Labour Force Survey:
Immigrants are, on average, more highly educated than native-born Canadians. Since the 1970s, most immigrants are visible minorities, and the largest segment of these are independent or economic immigrants, who are selected based on Canada’s points system. These immigrants tend to have some form of post-secondary education, and substantial numbers have not just university degrees, but also advanced degrees. Despite their education, visible minority immigrants face barriers to employment at their level of qualification, which forces them to seek lower-skilled jobs. These barriers include employers’ unfamiliarity with foreign qualifications, lack of credit for non-Canadian work experience, highly restrictive licensing processes, as well as discriminatory hiring practices based on race, immigrant status or origin.
Immigrants often accept work for which they are overqualified because they are denied employment at their level of qualification. Consequently, they are over-represented in lower-skilled jobs compared to Canadians with equivalent paper qualifications and under-represented in ”knowledge occupations,” where a high proportion of workers have a university education (for example, science, engineering, health and other professions).
Even though such occupations are increasing in importance along with the skill levels of immigrants, immigrant representation in these occupations has fallen in absolute terms.
Immigrants tend to come from countries with significantly less economic opportunities, and their point of comparison is the jobs held in their country of origin by comparatively qualified people. To the extent that turnover results from workers pursuing other opportunities, the barriers faced by immigrants eliminate these opportunities. In fact, turnover may be less of a problem among immigrant workers. The data indicate that overqualified job candidates are likely to be racial minority immigrants, which means that a policy of not hiring overqualified candidates results in screening out visible minority immigrants.
Based on Dr. Reitz’s expert testimony, the Tribunal found that there was a correlation “between visible minority immigrant status and overqualified status.” It substantiated Dr. Sangha’s complaint of discrimination under section 7 of the Canadian Human Rights Act. It issued the following order: “Where a visible minority immigrant has been chosen for an interview for a position with the MVLWB, that the MVLWB cease using any policy or practice that would automatically disqualify such candidate for the reason that they are overqualified for the job.”
The damages awarded by the Tribunal did not result in Dr. Sangha being hired as an RO or provide any payment for lost income. However, a subsequent request to federal court to grant a judicial review did find that the Tribunal erred in this regard. Stating there was significant evidence to suggest that Dr. Sangha did have a “serious possibility” of being hired, the federal court sent the case back to the Tribunal. The absence of further reporting on the case suggests that the parties reached an out-of-court settlement.
The findings of the Tribunal and Federal Court are now part of Canada’s body of case law, and have already been cited as precedent in a number of subsequent cases.
The Canadian Human Rights Commission considers this case a landmark ruling. The ruling also suggests that Canada’s labour law and human rights landscape is becoming more aligned with the shifting profile of our ethno-demographic landscape. Not only should employers be aware about the emerging legalities of the hiring process, they would also benefit from exploring the rich nature of the skilled immigrant labour pool.
A growing number of cities have immigrant employment councils as well as immigrant-serving agencies, which offer tremendous expertise on the process of recruiting and integrating skilled immigrants into the workforce. With this type of support, which employers can typically access at no cost, hiring skilled immigrants can be tremendously rewarding in developing a robust human resource strategy.
Authors
Raquel Chisholm, Senior Associate for Emond Harnden LLP
She can be reached by phone at (613) 563-7660 or by e-mailrchisholm@emondharnden.com.
Emond Harnden LLP is Eastern Ontario’s largest law firm devoted exclusively to advising management on labour relations and employment matters. For more information, please visitwww.emondharnden.com.
Michael Sebold, Senior Manager, Public Policy and Research for Hire Immigrants Ottawa
He can be reached at 613-228-2502 or by e-mail msebold@ hireimmigrantsottawa.ca.
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