Human Rights Office

Human Rights Office
Human Rights Office

Moore v. Ferro & Co. (No. 15)

 

Summary

The applicant self-identifies as a Black man of Afro-Caribbean descent and a man of colour. At the time of the events, he was 45 years of age and had recently moved from the United Kingdom, after graduating and practicing law in England for seven years, including two years as a part-time associate University law lecturer.

The applicant was invited to attend an orientation interview with the firm's Professional Services Liaison ("C.P.") on January 20, 2011. At this orientation interview, the applicant was shown a presentation on how the firm operated, and the firm's structure and file management process was explained to him. The applicant states that nothing specific was asked of him at this interview about his experience or qualifications.

On January 25, 2011, the applicant was invited by C.P. to attend a "group interview" with two other candidates. C.P.'s email stated that five members of the firm would be present for the interview, including two senior lawyers. Due to a snowstorm, this group interview was delayed until February 9, 2011. The applicant attended for the group interview on February 9, 2011. The other two candidates who were participating in the group interview were a young South Asian man who was just completing his articles ("S.P".), and a young Black male who was newly called to the Bar ("J.H".). In the end, the two senior lawyers who were originally supposed to form part of this group interview did not attend. Instead, the interview was conducted by the personal respondent, Ms. Helden, together with four other firm staff members.

The applicant's own notes from the interview indicate that at some point, Ms. Helden made a statement about the firm having difficulty making lawyers "fit." The Minutes of the post-mortem indicate that a couple of the interview observers made some brief initial comments, after which each observer provided an overall letter grade for each candidate. The applicant received two As, two Bs and a C (from Ms. Helden). J.H. received one A, a B+, two Bs, and a C (from Ms. Helden). S.P. received two Bs, two Cs and one A (from Ms. Helden). The group interview observers also provided general statements about each of the candidates. The Minutes concludes with the statement, "overall we need a better pool of candidates." None of the three candidates were hired as a result of the group interview, nor were the other two candidates invited back for any further interview.

On March 16, 2011, the applicant received an email from C.P. advising him that she could not make an offer to him at this time. The applicant replied on the same day expressing his disappointment and asking for feedback. On April 11, 2011, the applicant followed up with a further email, since he hadn’t received any further comments regarding his performance. After some email exchange, Mr. Ferro stated that it was rare for the firm to hire new calls without at least articling experience in its area of practice and that those who have been hired without such experience have generally failed. Additionally, he believed the concern was that the applicant did not have the articling or other law-related experience the firm was looking for. The applicant responded later that day with a very lengthy email. He stated that the advertisement he had seen earlier that year made no mention of the need to have any articling experience in the firm's area of practice and that if it had, he likely would not have applied. In his email to Mr. Ferro, the applicant also expressed that he had been invited to two interviews (the initial orientation interview with C.P. and the group interview) when the firm's staff knew that he did not have insurance claims litigation experience or articles, and that when he had asked C.P. about this, he was told that the firm provided rigorous training.

He asked Mr. Ferro to reconsider and suggested the potential for working on a six-month trial basis. This led to the applicant receiving an email from C.P. on June 14, 2011, to invite him to an interview with Ms. Helden the next day to discuss this possibility. The position for which the applicant was interviewed on June 15, 2011, was a position with Ferro & Company.

During the June 15, 2011 interview Mrs. Helden started saying that the applicant was “a bit pushy,” and asked him about his nursing experience and his job experience in Canada. When he was finished, Ms. Helden did not ask any questions about what he had said, but she said "I thought you had more nursing experience than you had" or words to that effect. The applicant states that he did not realize that his nursing background was going to be such a big factor and that he thought something was not quite right because he had been told that this was a special position that had been carved out for him. The applicant was also asked what grade did he received in English, and Mrs. Helden stated that she asked that question to all candidates.

The applicant testified that at the June 15 interview, he was trying to convince Ms. Helden that he was someone who could adapt and learn quickly. He states that Ms. Helden replied by saying, "you're trying too hard to convince me of your qualifications; it's not about qualifications; it's about fit." The applicant testified that in this context, Ms. Helden volunteered that she had recently hired a lawyer that was better able to adapt than a more senior lawyer who required more resources. The applicant states that, in his mind, he was putting two and two together — that Ms. Helden had asked him if he had a problem adapting, and then made reference to an older lawyer who was not able to adapt while a younger lawyer was able to adapt to the firm's structure much more readily.

The Applicant was then invited to another interview on August 11, 2011, but he couldn’t attend since he was out of the country. On August 14, the Applicant replied to the invitation with an extensive email posing a lot of questions regarding the hiring process and practices. At that point, Mr. Ferro said that he would take care of it and Ms. Helden should have no further involvement.

When he did not receive any response to his email, he re-sent it to the same people on August 29, 2011, with no further or additional content. When he still did not receive any response, he sent a further email to C.P., again copied to Ms. Helden, on September 9, 2011, stating that he had not received any response to his August 14 memo, and asking whether he was still being invited for an interview. This elicited a response from C.P. on September 13, 2011, stating that an interview was not required as the positions had been filled. Following receipt of the September 13, 2011 email from C.P., the applicant wrote a further email that same day, this time sent directly to Mr. Ferro and Ms. Helden. In this email, the applicant refers to C.P.'s email as "rude, unprofessional and unfair" and alleges that he has been treated with "disdain and disrespect." Mr. Ferro replied to this email later the same day. He asked the applicant to address all concerns to him from this point on and stated that the applicant had received his decision and that there was nothing more to discuss.

The applicant replied by email dated September 15, 2011. This email represents the first occasion on which the applicant made a complaint of discrimination that potentially could trigger a duty to investigate under the Code. He expressly alleges that he has experienced discrimination because of age and/or sex by Ms. Helden and C.P., and that these same parties had also discriminated against him because of race, ancestry, place of origin, colour, ethnic origin or citizenship.

Mr. Ferro responded by email also dated September 15, 2011. In this email, Mr. Ferro alleges that the applicant "came here with an agenda and you are in the process of carrying it out." He makes reference to the applicant acting on the basis of "an unfortunate foundational belief", and refers to the applicant's allegations as "totally a fabrication of monumental proportions".
 

Questions to be Determined and Findings

1. Was the applicant discriminated against on the grounds of race, colour, ancestry, place of origin, citizenship and ethnic origin? (YES)

2. Was the applicant discriminated against on the grounds of age? (YES)

3. Did Mr. Ferro fail to investigate a discrimination claim? (YES)

4. Did Mr. engaged in reprisal against the applicant? (YES)
 

Reasoning

1. The applicant alleges that only the two candidates of colour were interviewed more than once to get a position at the firm. However, the Judged established that the typical hiring process at Ferro & Company involved three steps: (1) an initial orientation meeting, typically with C.P., to review the firm's process and approach; (2) an interview with senior staff, typically involving C.P. and Ms. Helden; and (3) a final interview with the lawyers' group, which at the relevant time appears typically to have been with Mr. Ferro and the other senior lawyer at the firm. The same hiring process was conducted for all applicants, including the White candidates.

The applicant would like me to infer that a group interview was conducted on February 9, 2011 because the three candidates for that group interview were all members of racialized groups, which C.P. would have known on the basis of her initial orientation meeting with each of these candidates. As I have said, there is no dispute that the three candidates involved in the February 9, 2011 group interview were all members of racialized groups. In addition, there is no doubt that C.P. would have known from her initial orientation interview with the applicant that he is Black, and would have known that the other two candidates also were members of racialized groups if she conducted orientation interviews with them. However, I find that these facts alone, in the absence of any other evidence, are insufficient to support an inference that the group interview was conducted because these three candidates were members of racialized groups. In this regard, I note that this finding is consistent with my finding that there is insufficient evidence to support that group interviews were not conducted with the two racialized candidates who were hired. (p. 145)

The applicant also the applicant referred to a form of "White interview" that he alleges was used by the respondents to interview White candidates, which he contrasts with the form of interview used for racialized candidates. However, the Judge did not find this a credible argument because the only evidence presented referred to notes and minutes from previous interviews where a white candidate was also unsuccessful. Those minutes also did not exemplify any particular form of interview being conducted depending on the race of the applicant.

Additionally, Ms. Helden acknowledged that she raised the issue of the applicant being perceived as "pushy" at the outset of the interview, based on the series of follow-up emails he had sent after being advised in March 2011 that he would not be offered a position at that time. After reading the email exchange, the judge did not accept that the comment about the applicant being "pushy" as a reflection of the angry Black male stereotype.

On the other hand, Mr. Ferro engaged in racial discrimination against the applicant in violation of his rights under s. 5(1) of the Code due to his failure to appropriately respond to the applicant's allegations of discrimination as raised in his September 15, 2011 email, and further by justifying his dismissive reaction based on racial stereotypes and biases.

2. Of the three candidates who participated in the February 9, 2011 group interview, S.P. and J.H. were both younger candidates who had recently graduated from law school. In contrast, at this time, the applicant was 45 years old.

In the post mortem, the assessor J.D. is recorded as making reference to S.P. as being "young ambitious" and as "young saw a competitive edge", both of which link positive attributes directly to S.P.'s youth. In contrast, J.D. is recorded as stating in relation to the applicant, "his (sic) is older already entrenched habits", which links a negative attribute directly to the applicant's relative older age. In addition, Ms. Helden during the post-mortem is recorded as saying in relation to S.P., "he was young saw as mentally fast an (sic) opinionated, not a negative", which once again links positive attributes to S.P.'s age and youth in contrast to the applicant. (p. 169)

Even though in some instances Ms. Helden used the term “young” to refer to an applicant’s work experience, the Judge did not accept that she was using the term in only this context.

On the basis of the evidence before me, I find that the applicant's older age was a factor considered by the assessors at the February 9, 2011 group interview, which is sufficient to find that the applicant in this respect was subjected to age discrimination with respect to employment contrary to s. 5(1) of the Code. While I appreciate that the applicant was nonetheless called back for a further interview in June 2011, I find that he experienced a detriment in relation to the consideration of his age given that, following the February 9, 2011 group interview, he was informed by the firm on March 16, 2011 that he could not be made a job offer at that time, and only was invited to a further interview following his repeated and persistent efforts. (p.175)

3. The Judge, started noting that there is no freestanding "duty to investigate" under the Code. Rather, there is Tribunal jurisprudence that has established that, in certain circumstances, it is a violation of the right to be free from discrimination where a respondent fails to take appropriate steps to respond to an allegation of discrimination.

The applicant raised legitimate concerns about being discriminated against during the hiring process, and Mr. Ferro’s response was dismissive, and he did not take any steps to address such allegations.

I appreciate that the Tribunal's case law in relation to the "duty to investigate" primarily has addressed circumstances where an applicant and a respondent are in some kind of ongoing relationship, whether as employer-employee or as service provider and service-recipient. I also appreciate that a job candidate falls into a different category, as there is no ongoing relationship between a job candidate and a prospective employer outside of the recruitment or hiring process. Having said that, in my view, I find that there is at least some obligation on a prospective employer to take some steps in response to an allegation of discrimination alleged by a job candidate, even if the measure as to what constitutes taking "appropriate steps" in response to such an allegation may not be as robust for a prospective employer as is expected of an employer in an ongoing employment relationship with an employee. (p. 187)

Moreover, the Tribunal found that it was inherently discriminatory for Mr. Ferro to fail to take any steps to address or investigate the applicant's complaint of discrimination. Mr. Ferro's actions in failing to take such a complaint seriously and to respond to such a complaint properly violate the applicant's dignity interests in a way that is additional to and independent of the underlying allegations raised in the applicant's complaint.

4. Mr. Ferro did not stop there. He further went on to make gratuitous and insulting comments about the quality of the applicant's legal abilities in his email of September 16, 2011. Beyond hurling abusive insults about the applicant's legal abilities, Mr. Ferro also attacked the applicant's character.

In his September 11, 2013 email, Mr. Ferro states: "you are hustling a settlement here and you know it". Above, I noted that the applicant was particularly affected by Mr. Ferro's reference to him as a "hustler". I agree with the applicant that the use of this term is connected to a stereotypical view of Black males. I accept the applicant's evidence that he is a professional with drive and ambition who has overcome many challenges in his career, and that it was extremely hurtful to him to be called a "hustler" and to be confronted with these personal attacks on his character. (p. 199)

Accordingly, the Tribunal established that Mr. did engage in reprisal towards the applicant.
 

Remedy

British Columbia Human Rights Tribunal ordered $2,000 as compensation for injury to dignity, feelings and self-respect, with post-judgment interest at a rate of 3.0% per annum to run on any amount unpaid more than 30 days from the date of the decision.