Thursday, January 3, 2013

Government heavily dinged for age discrimination

An interesting Alberta human rights decision came across my desk right before the holidays. In Cowling v Her Majesty the Queen in right of Alberta, a former contract employee complained the province had discriminated against her on the basis of her age. The remedies awarded by the Alberta Human Right Commission along with the potential political implications of seeing the Department of Employment and Immigration (now Human Services) dinged for discrimination make this a good read.

In short, Cowling was a long-term contract employee in Mediation Services. After several renewals as well as eight years of satisfactory performance assessments and performance bonus awards, she found her contract (after being renewed for ever shortening periods) was allowed to lapse. When she applied on a permanent posting for basically the same job but at a lower classification, neither Cowling (who was obviously qualified) nor any of the other candidates were hired. The position was then reclassified as a manager (basically duplicating Cowling’s former job), there was confusion regarding the closing date, Cowling did apply because of the confusion, and a younger applicant landed the job. He then left and the job remains open (five years on).

The testimony and documents often conflict. They hold important lessons about the importance of a paper trail and the importance of being alive to notions of adverse effect discrimination. The upshot (according to the commission) is that the government discriminated against Cowling on the basis of her age.
[172] …Ms. Cowling was advised that her position was not being continued because the respondent was redefining her position with one what could apparently ensure services “over the long term” and that the position would be a “growth” or “developmental” position. Ms. Cowling was not advised at any time that she did not have qualifications or suitability for this position or that the position required mediation training, and no such requirement was noted in the job advertisement or departmental documents. In the absence of any contrary information as to why Ms. Cowling was not successful in the position, all of the above evidence supports a reasonable inference that Ms. Cowling’s age was a factor in her inability to secure this long-term “developmental” or “growth” position. Prima facie discrimination has been established.
The government’s defense was unconvincing, according to the tribunal:
[175] Mr. Kennedy and Mr. Mitchell testified that Ms. Cowling was not a good “fit” for the position as she did not have the skills or potential to be a mediator. First, there is no convincing evidence that mediation skills were a clear requirement for the position. …

[177] Alternatively, even if one accepts that mediation skills were required for this position, the evidence supports that Mr. Kennedy and Mr. Mitchell did not fairly assess Ms. Cowling’s mediation skills. Neither of them had seen her mediate or provided her with an opportunity to further develop her hands on mediation skills. … While Mr. Mitchell, who in my respectful view had significantly inferior qualifications to Ms. Cowling in the area of dispute resolution, was provided opportunities by Mr. Kennedy to expand his mediation training, Ms. Cowling was inexplicably denied many of these opportunities, such as regularly sitting in on mediations for learning and furthering her mediation training. Neither was she provided guidance that could have helped her to overcome any perceived weaknesses identified by her supervisors.

[178] … However, during the latter part of her tenure, the evidence supports that even though mediation training was set out in Ms. Cowling’s learning plan, Ms. Cowling was held back by Mr. Kennedy from opportunities to increase her practical experience and knowledge in mediation.

[179] Alberta also submits that Ms. Cowling was not a good “fit” in that Ms. Cowling had a somewhat confrontational nature unsuited to a mediator. … Mr. Kennedy and Mr. Mitchell point to Ms. Cowling’s demeanour during contract negotiations held during this period of time when they knew that Ms. Cowling was experiencing tragic personal circumstances, as evidence of Ms. Cowling’s personal unsuitability to be a mediator. Mr. Kennedy also acknowledged, in cross-examination that when negotiating a contract, as opposed to simply continuing as a permanent employee, the contract employee must negotiate and attempt to get the best deal. I do not find the evidence of Ms. Cowling’s demeanour during these contract negotiations, given her personal circumstances and her desire to negotiate a good contract, to be of such a confrontational nature that would support a credible justification that Ms. Cowling was not a good “fit” for the LR 2 position.

[186] Mr. Kennedy was on the interview panel that certified Ms. Cowling in the position of LRO 3 in 1999. For eight years, her contracts were renewed. She regularly received bonuses for being assessed as “fully meeting expectations.” Ms. Cowling repeatedly asked how she could enhance her performance yet Mr. Kennedy had nothing to offer and could not provide her with any recommendations in that regard. From this evidence and the evidence supporting that Ms. Cowling’s qualifications in the LRO 3 position met the qualifications of the LRO 2 position, one can reasonably conclude that Ms. Cowling did very good work, was an efficient member of the branch and was indeed a good “fit” in the position and with colleagues in the branch.

[188] The other reason Alberta puts forward as the reason Ms. Cowling did not get the job is that the organization legitimately needed to replace Ms. Cowling’s position with a “growth” or “developmental position,” and age was not a factor in this replacement.

[189] …The documentary evidence revealed that Mr. Kennedy and Mr. Mitchell developed plans that clearly appeared to exclude the possibility of Ms. Cowling continuing to work in the branch not only because of the descriptive terms used as noted above throughout the documentation but also because of the sequence of steps taken in the proposed plans which suggested that employee age was part of the reasoning in the decision to restructure the branch.

[192] Alberta argued that Ms. Cowling was considered a viable candidate during the interview process. However, the information consistently supports that Mr. Kennedy and Mr. Mitchell went through the motions of including Ms. Cowling in the candidate pool for the LRO 2 competition but with no intention of hiring her no matter the outcome. (Transcript pages 316 to 318) The information further supports that Alberta included Ms. Cowling in the interview process because Mr. Kennedy and Mr. Mitchell were concerned it would look bad and have a negative impact on morale in the branch if Ms. Cowling was left out of the process.

[197] Indeed the series of events demonstrated that the “long term” needs of the branch apparently could be met by someone who was in the LRO 3 position and who had the qualifications of Ms. Cowling. This series of events supports the view that the Respondent was looking for someone other than Ms. Cowling, someone distinguished by a younger age, who could ostensibly continue working for the branch for several years to come.
Ouch. This is a pretty damning indictment of the government’s actions--both at the time and in failing to settle this when presented with the facts. Given that Mediation Services is a neutral office that assists labour and employers to settle their differences, it will be interesting to see how this decision will affect the perception of Mediation Services by organized labour.

The remedies ordered are also fairly exceptional.

The Commission ordered the government to offer Cowling reinstatement on a one-year contract to either her old position or a comparable position. The commission then noted:
After the expiration of the one-year contract, Alberta can determine the need for Ms. Cowling’s services; however Ms. Cowling’s age cannot be a factor in future decisions not to renew her contract.
Explicitly noting that the government ought not violate the law in its administrative work (no kidding!) is a pretty big slap to the government.

The commission also ordered five years of wages paid (discounted by 30% for the contractual nature of the job). It also ordered $15,000 in general damages and interest and Cowling’s costs.

All in, these remedies are likely about a $500,000 hit. The level of remedy and the use of reinstatement is pretty uncommon. Overall, quite a decision.

-- Bob Barnetson

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