Human Rights Tribunal agrees that CBSA discriminated against job applicant

The Canada Border Services Agency discriminated against a PSAC member on the basis of his age, race and perceived obesity, thereby preventing him from securing permanent employment.

That’s what the Canadian Human Rights Tribunal ruled in the case of Levan Turner – a union member who first filed a complaint against CBSA in 2005.

PSAC and our Customs and Immigration Union component supported Turner as this case made it through five different levels of decision-makers, including the Federal Court of Appeal, which referred the case back to the Tribunal.

After nearly a decade of court proceedings, Turner will receive significant compensation to make up for lost wages. But more importantly, his case sets a precedent when it comes to fighting the kinds of discrimination that can influence job competitions and deny career opportunities to people.

Lisa Addario is PSAC’s legal counsel. She sat down with us to answer a few questions about why this case is significant both for PSAC members and for Canadian labour law.

Can you give us a quick summary of what happened to Levan Turner in the workplace to trigger this complaint?

Levan Turner filed a complaint in 2005, after he was screened out of two separate competitions for indeterminate positions with CBSA. He was unsuccessful two separate staffing processes, even though he had worked for the agency for several years and had stellar performance reviews. The only things that set him apart were that he was a large, black male. He believed that this is why he was excluded from the two job competitions, even though he worked for the agency for several years as a seasonal border services officer.

During the court proceedings, we were able to uncover emails that were sent to the hiring committee that implied that he was lazy – this appeared to be linked to the racist stereotype of the “lazy black man.”

And the Tribunal decision agreed with us, saying that “that the interview process was a pretext, it was a process that subjected Mr. Turner to discrimination by reason of a perceived disability of obesity, his race and age.”

Why is this decision significant from a human rights perspective?

This case establishes a helpful precedent for workers who find themselves in situations where discrimination is hard to discern.

The Supreme Court has recognized perceived disability as a ground of discrimination – somebody else’s notion of your identity can have an adverse impact on you, whether or not it may be true. This was the case with Turner – as a large black man, he was perceived to be “lazy.”

This case also refers to the concept of “compound discrimination” – even referring to the term “intersectionality.” This is very important. This recognizes that the complexity of discriminatory attitudes may mean that our experiences of discrimination may go beyond race, gender or disability and can be compounded by additional stereotypes.

The stereotype of “lazy, fat black man” encompassed several factors that worked together exclude him, despite positive job reviews.

Why did PSAC take this case on and continue to fight it?

Systemic discrimination cases are challenging and are often based on what has been called the “subtle scent of discrimination.” It make is even more important to confront job competitions and job interviews. It can be difficult to establish that people are excluded from employment opportunities due to the taint of stereotyping or an unwillingness to judge people on the basis of merit.

That made the case challenging, but it also made the outcome precedent-setting. The discrimination may have been subtle, but it was real.

The Tribunal described CBSA’s rationale as “unsound and misleading.” That’s why we stuck with the case. It would have created great economic hardship if he had fought this on his own over almost 10 years and in five courts.