Tuesday, February 7, 2012

HRTO Refuses to Hear Systemic Discrimination Claims

There is a new development in the Carasco v. University of Windsor case at the Human Rights Tribunal of Ontario.  This is a case which has already drawn some attention because of the remedy being sought by the applicant:  Emily Carasco is a law professor at the University of Windsor who alleges that the decision not to appoint her as Dean of Law was based in illegal discrimination, and is seeking an order from the Tribunal that the University appoint her to the position.

In a previous interim decision by the Tribunal, the Tribunal determined that it did have jurisdiction to award that remedy if it deemed such appropriate.

In support of her application, Carasco made significant allegations of systemic discrimination against women and minorities, particularly in senior positions, going back all the way to 1967, pointing out that all the Deans and Acting Deans - excepting only one Acting Dean from '83 to '85 and one Dean from '96 to '99 - have been white males.  These allegations are made in support of public interest remedies sought, but if proven they would provide important background to Carasco's own allegations of individual discrimination, being something akin to similar fact evidence.

The effect on the narrative is quite clever:  The argument is essentially that white males have always dominated the Faculty of Law, which is why she, a minority female who cares about equity, is unwelcome, and also why the Tribunal, which also cares about equity, should want to put her in a position of authority.

The new interim decision deals with Carasco's ability to advance allegations of systemic discrimination, and the Tribunal holds that she cannot advance allegations of discrimination that did not affect her.  The Tribunal directed her to revise her Application to remove allegations where there is "no link" to alleged infringement of her individual rights, and to clarify what she's including as an allegation for which she's seeking relief and what she is including simply as evidence or background (for example, she alleges discrimination against her in the application dating back to when she was first hired in 1980, though the Tribunal infers that this is just background).

Does this mean that the systemic allegations of discrimination are completely out?  Well, there's a proviso in the decision noting that something that doesn't properly form an allegation capable of generating a remedy may still be considered evidence in support of a remedial allegation.  It wouldn't surprise me if Carasco still tries to get many of the systemic allegations as evidence in support of her own allegations.

My Thoughts

The Tribunal's decision not to allow her to bring an Application on behalf of others generally is an interesting question of its own, but I think there's a certain logic to the decision.  As to the potential question of whether or not Carasco should be able to lead systemic discrimination evidence in support of her allegations of individual discrimination, I think that under the right circumstances such a thing should be possible, but I'm not sure that these are the right circumstances.

I would question the probative value of some of the statistics she brings to bear in support of her allegations of systemic discrimination.  One cannot assume from looking at the demographics of occupants of a high-level job that the decision-makers for that particular position have been biased, unless one also looks at the demographics of the pools of qualified and interested candidates.

Deans of Law are drawn from relatively limited pools of senior legal scholars.  In 1967, it goes without saying that the vast majority of senior legal scholars were white males.  At that time, it even remained true that a very small minority of law students were women or visible minorities.  So, even decades later, when students from that class had achieved the experience necessary for an appointment as Dean, it would still obviously have been true that the vast majority of candidates would have been white males.

Today, law school classes reflect the diversity of our society, and usually are more than 50% female.  But there's obviously some catch-up on that before they'll become Deans, and there are other equity issues with which the profession is struggling which may result in continued inequity at senior levels:  Among others, there are well-documented challenges with the profession's retention of women.  A disproportionately high number of female lawyers leave the profession early, with the result that we're still going to see a smaller number of them at senior levels.  That will create inequity in the candidate pools for Dean positions without by any means implicating the decision-makers in any discrimination.

Perhaps more to the point, even if you could establish that the hiring committee in 1967 excluded a qualified candidate on discriminatory grounds, it would be pretty difficult and tenuous to go from there to an inference that the current hiring committee, with no common links to the one 45 years ago, must therefore share the same improper values.

If there is solid evidence that the individuals who dictated the results of this contest, directly or indirectly, were prone to discriminate in such contests, that could support an inference of discrimination in this contest.

However, it seems to me that Carasco's allegations of systemic harassment are built largely on allegations against the amorphous and ethereal "they".  Granted, the application is far too sophisticated to overuse the term "they" itself, it instead uses the passive tense, the "University" or the "administration", which glosses over the fact that the University and its administration are merely institutions, directed by individuals, which individuals have changed numerous times over the period which she discusses.

To be fair, she often does mention the individuals involved at certain points.  For example, in 1990 she was passed over for a promotion in favour of a "white colleague" (female, notably), and she names the professors on the search committee; however, there is no clear link between these professors and the search committee for the Dean contest primarily at issue in this Application.

Then, in 1999, she was denied a promotion to full professor, which decision was overturned on an internal appeal.  Of the four people she identifies as being on the promotions committee, at least two of them (including the dean) were not white males, and only one of the people on the promotions committee was at all involved in the dispute relating to the later Dean contest, and that relation was indirect.  (This was Professor Moon, whom Carasco alleges 'sabotaged' her application to become Dean by making unfounded allegations of plagiarism during the contest.)

Even assuming that Carasco could establish a history of unfair treatment against her, it's an uphill battle to go from "I was treated unfairly" to "I was treated unfairly because of my race and/or gender".  An Applicant is required to lead "clear and cogent evidence" of that the treatment was at least partly motivated by a prohibited ground of discrimination.  Simply put, not all personal antipathy is based on race or gender, and antipathy not based on prohibited grounds of discrimination is not remedial by the Tribunal.


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

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