Human Rights Office

Queen's University
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Human Rights Office
Human Rights Office

Nelson v. Lakehead University, Bahram Dadgostar and Jerry Phillips 2008 HRTO 41 (CanLII)

Summary:

In 2002, Dr. Nelson applied for a full-time, tenure track assistant professor position in the Faculty of Business Administration at Lakehead University. Dr. Nelson interviewed for the position along with three other candidates and was ultimately not chosen as the successful candidate. After the interview process, Dr. Nelson was advised by one of the members of the hiring committee, Dr. Cole, that age had been a factor in deciding not to hire Dr. Nelson. In response to the perceived discrimination occurring on the committee, Dr. Cole resigned from the hiring committee. Outlining the reasons for resigning from the committee, Dr. Cole submitted a letter to the Dean, Dr. Dadgostar. In this case it was found that age was not a factor in the hiring process surrounding Dr. Nelson. It was however, found that the Dean’s handling of the allegations raised by Dr. Cole were not reasonable and therefore in violation to section 5 and 9 of the Code.

Question(s) to be Determined:

  1. Was Dr. Nelson’s age, 57 at the time of his interview, a factor in the hiring process contrary to sections 5 and 9 of the Code?
  2. Did the Dean’s handling of the allegations raised by Professor Cole violate sections 5 and 9 of the Code?
  3. Did the job requirement of recent/current research experience have an adverse impact on Dr. Nelson because of his age contrary to section 11 of the Code?

Findings:

  1. Was Dr. Nelson’s age, 57 at the time of his interview, a factor in the hiring process contrary to sections 5 and 9 of the Code?

  NO

  1. Did the Dean’s handling of the allegations raised by Professor Cole violate sections 5 and 9 of the Code?

  YES

  1. Did the job requirement of recent/current research experience have an adverse impact on Dr. Nelson because of his age contrary to section 11 of the Code?

NO

Reasoning:

  1. In this case it was decided that there was no credible evidence that the selection process was tainted by considerations of age. This finding was made for a number of reasons including the perceived credibility of Professors Phillips and Isotalo (selection committee members) versus the perceived lack of credibility of Professor Cole (selection committee member). As an overarching comment, adjudicator Martin states that there was “insufficient circumstantial evidence to conclude that the outcome of the selection process was tainted by age” (para 78). Further, adjudicator Martin stated, “the committee’s recommendation was not tainted by consideration of age. Faculty voted on this recommendation to offer the position to Dr. Mihai. I find that the result of the selection process and the process itself up to and including the vote was untainted by considerations of age” (para 89).
  1. Using Laskowska v. Marineland of Canada Ltd. (2005) the duty to investigate a complaint of discrimination was outlined. Based on this jurisprudence, the content of the duty is to take reasonable steps to address allegations of discrimination. In this case the adjudicator was not satisfied that the Dean’s response was reasonable. It was found that the Dean’s response to Professor Cole’s complaint of discrimination during the hiring process was dismissive of her allegations. “Moreover, the Dean’s informal inquiry and comments to staff about the Code did not constitute a reasonable investigation into the allegations (para 102). Further, it was found that the Dean did not follow the University’s own human rights policy. Because of this finding it was stated that “the University has failed to meet its corporate responsibility under the Code. While the University has a policy, it is clear that the University has not ensured that the Dean was trained on how to respond to allegations of discrimination in a hiring situation” (para 106).
  1. In this case it was stated that “while it was apparent from the evidence that the Committee assessed the candidates on the basis of their research background and specifically viewed current/recent research favourably, I am not satisfied that Dr. Nelson did not meet this “requirement” because of his age” (para 108). Although current/recent research was one of the criteria used to evaluate candidates, it was found that there was “insufficient evidence establishing that age bears the relationship to research which underpins the Commission’s argument” (para 110). In this case the adjudicator did not believe that younger candidates with recent PhD’s and active research programs would be at an advantage in the job competition.

Remedies:

At the conclusion of the hearing the parties were encouraged to have discussions in an effort to reach a settlement without further adjudication. No further information on the remedies in this case are provided.