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Queen's University
 

Ogunyankin v Queen’s University [2011] O.H.R.T.D. No. 1915

What kind of evidence does a professor have to provide in order to establish prima facie racial discrimination?

Facts

This case deals with the application of an assistant professor in the Queen’s Faculty of Medicine who claimed that he was denied promotion on the grounds of race.  His evidence included several reports of systemic racism at Queen’s University (the PAC report, the Henry Report, the SEEC response to the Henry Report). While he had no direct evidence of racism, he submitted that it was possible to infer that irregularities in his promotions process and in his final evaluation were driven by racism.

The applicant listed the following as irregularities in the promotions process included:

  •  The committee disregarded his external letters of recommendation, which, according to the applicant were very positive
  • Contrary to policy requiring that letters of recommendation be written by persons holding a rank superior to the applicant, the committee requested a letter from the applicant’s department head, who held the same rank as himself.
  • The committee’s decision not to promote was based in part on false information; the department head informed them that the applicant had 50% time for research whereas he only had a fraction of that time.

Issues

  1. Does an applicant need to provide direct evidence of racial discrimination?
  2. Does the evidence of systemic racism (the three reports) support an inference that the applicant experienced racial discrimination in relation to the promotions process or the denial of a promotion to the rank of associate professor?
  3.  Was the committee’s assessment of the external letters of recommendation based on the applicant’s race?
  4. No.  The Tribunal stated at paragraph 86 that it was not unusual for applicants not to have direct evidence of racial discrimination and that Tribunals had to draw inferences based on the “application of well-established principles relating to the use of circumstantial evidence.”These principles were quoted at paragraph 87.”
  5. No.  While the Tribunal “placed reliance” on the three reports of systemic discrimination at Queen’s University, i.e. the PAC (1991), The Henry Report (2004) and the SEEC Response to the Henry Report (2006), it ultimately found that this evidence alone was insufficient to make a determination of discrimination against Queen’s.   Rather, the onus was on the applicant to show a link between the systemic racism and any alleged experience of racism[1].  The Tribunal found that whereas the University provided convincing evidence that the committee’s decision not to promote the applicant was based on “legitimate and non-discriminatory concern about his record of research and scholarship and his teaching” (223), the applicant failed to provide any counter evidence that the University promoted non-racialized candidates in the same position as the applicant (clinician-scholar) and with a similar record of research, scholarship and teaching. Moreover, the Tribunal found that the applicant’s “culture of whiteness” argument [2] was weakened in this case by two mitigating factors/facts: 1) two of the 9 members of the applicant’s promotion’s committee were racialized persons [3] and 2) two of the 10 clinician/educators who were promoted solely on the force of their teaching[4] were raciaized professors.  In the absence of direct evidence of racial discrimination, which the applicant failed to provide, these facts made it impossible for the tribunal to infer that the applicant was a victim of the Culture of Whiteness at Queen’s.
  6. No. The Tribunal determined that the committee duly considered the external letters. Moreover, in the Tribunal’s assessment, the letters were ambivalent, not glowing as the applicant had maintained.  While the referees offered very high praise for the applicant’s research accomplishments that predated his position at Queen’s, they offered only lukewarm praise for his work at Queen’s.  Furthermore, the Tribunal determined that there was no evidence of racial discrimination in the committee’s correct interpretation of the external letters.

Decisions



[1]

221     In previous decisions in this matter, I have stated repeatedly that it is not an issue before me whether in some general way systemic racism exists at the respondent University. The sole issue before me is whether the applicant personally experienced racial discrimination in the manner alleged. While I have indicated that systemic evidence of the nature brought forward in this case can play some role in establishing context or background for the discrimination alleged, at the end of the day some link or connection must be made between the systemic evidence and the particular and specific experience of the applicant.

222     I appreciate that racial discrimination can be manifested in subtle ways and most often emanates from unconscious racial biases. I appreciate that where there is a "culture of Whiteness", a member of a racialized group can be disadvantaged or marginalized for not fitting the "profile" of who an institution believes should merit promotion. But these broader issues do not answer the question of whether racial discrimination was manifested towards the specific applicant before me in the context and circumstances of this specific case.

223     In the instant case, the Promotion Committee and subsequent reviewers denied the applicant's promotion application on the basis of what I have found to be legitimate and non-discriminatory concerns about his record of research and scholarship and his teaching. These concerns make sense to me and are supported by the evidence. No comparative evidence has been brought forward to indicate that another non-racialized candidate who was in the role of clinician-scholar with a research and scholarly record similar to the applicant's was granted promotion. I have found that the evidence does not support that racial bias or stereotypes were at play in the matters considered by the Promotion Committee or subsequent reviewers. In short, in my view, there is no tangible evidence before me to support that the applicant personally experienced racial discrimination in relation to the promotion process, whether or not others at the respondent University may have in other and different circumstances.

 

[2] 220     The applicant has submitted that this entire case needs to be viewed through the lens of the PAC and Henry Reports (discussed above) and their findings that racial discrimination and a "culture of Whiteness" exists at the respondent University.

[3] 224     In this context, I also wish to address two other matters. I accept that there may be a "culture of Whiteness" at the respondent University. This certainly appears to have been accepted by the SEEC Report. One of the recommendations arising out of the PAC Report was to ensure that, as far as possible, at least one racial minority member should sit on Tenure and Promotion Committees. The evidence before me does not address to what extent this recommendation has been implemented across the respondent University, and such evidence would not be relevant to the specific matter before me. However, in the instant case, the evidence indicates that two members of the nine-member Promotion Committee are members of racialized groups. The Chair of the committee, Dr. Hudson, self-identifies as a Black man. Another member of the committee and the former Chair of the Division of Cardiology, Dr. Abdollah, self-identifies as a Kurdish man who immigrated to Canada from Iran as a refugee. I appreciate that merely having members of racialized groups on a promotion committee is no guarantee against racial discrimination towards an applicant, even by the racialized members themselves. I also appreciate that a "culture of Whiteness" at an institution may even inculcate itself into the views and biases of racialized members of that institution. However, the farther one gets away from monolithic White decision-making, the more difficult and tenuous it becomes to support an inference of racial discrimination on the basis of a generalized "culture of Whiteness" and in the absence of other specific indicia that racial discrimination is at play.

 

[4] 225     The second thing I wish to note is in relation to the more elastic and flexible application of the promotions policy within the School of Medicine when dealing with clinician-educators who have exceptional teaching and service records but less robust research and scholarship. In such circumstances, I have noted that the promotions policy has been flexibly applied to grant promotions to such individuals to the rank of associate professor. As stated above, there were 10 such candidates identified as falling within this category during the five year period from 2004 to 2008. In my view, it is notable that two of these 10 candidates self-identified as being from a "visible minority". In other words, where the promotions policy has been flexibly applied within the School of Medicine, this flexibility has advantaged not only White candidates but also candidates from racialized groups. Once again, I appreciate that this is a statistically small sample and that just because two members of racialized groups have been advantaged by a discretionary and flexible application of the promotions policy does not necessarily mean that the applicant was not disadvantaged because of his race. However, in my view, this evidence makes it more difficult to infer that within the School of Medicine, discretion under the promotions policy was exercised to the detriment of the applicant based on generalized evidence about systemic racism and a "culture of Whiteness" at the respondent University, once again in the absence of other specific evidence that racial discrimination was at play in relation to the applicant's specific circumstances.

226     As a result, while I have carefully reviewed and considered the systemic evidence of racial discrimination at the respondent University that was brought forward on the applicant's behalf, I ultimately do not find it of assistance to me in making my determination as to whether or not the applicant experienced racial discrimination in relation to the promotion process in the specific circumstances before me.

227     As a result, after carefully considering all of the evidence and submissions before me, I find that the evidence does not support an inference that the applicant experienced racial discrimination in relation to the promotions process or the denial of a promotion to the rank of associate professor.

Kingston, Ontario, Canada. K7L 3N6. 613.533.2000