The Challenges of ‘Glass Ceiling’ Litigation
- January 5, 2015
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“it is not a question of whether this discrimination is motivated by an intentional desire to obstruct someone’s potential, or whether it is the accidental by-product of innocently motivated practices or systems. If the barrier is affecting certain groups in a disproportionately negative way, it is a signal that the practices that lead to this adverse impact may be discriminatory.
This is why it is important to look at the results of a system.”
The subtlety of the discrimination, or the innocent motivations behind the practices that have discriminatory results, make cases of systemic discrimination, or more specifically ‘glass ceiling’ cases, no less real than other more direct forms of discrimination, but can make it very difficult to prove.
Although systemic discrimination is prevalent, cases of systemic discrimination can be very challenging from an evidentiary point of view and are therefore far less common. Below is an overview of some of the issues that arise in litigating systemic, ‘glass ceiling’ discrimination cases.
Discovery of Documents
Discrimination can be proved either by direct evidence of the discrimination or by circumstantial evidence that demonstrates the surrounding context in which the discrimination took place or provides an inferential link to support the case for discrimination (MacKinnon v Celtech Plastics Ltd, 2012 HRTO 2372 – link to decision).
In most cases, evidence relevant to a claim of systemic discrimination, whether direct or circumstantial, is in the hands of the Respondent-employer, and is not accessible to the Applicant (MacKinnon v Celtech Plastics Ltd, 2012 HRTO 2372 – link to decision; Jagait v IN TECH Risk Management, 2009 HRTO 779 – link to decision). The Applicant is often not even aware of the existence of these documents and it is therefore important for the Applicant to turn their mind to what kinds of documents may exist that are relevant to their case. In particular, the Applicant should be mindful of the following considerations outlined by the Ontario Human Rights Commission (link to website):
- numerical data – either demonstrating underrepresentation or unequal distribution, and serving as strong circumstantial evidence;
- policies, practices and decision-making processes – e. is it a highly discretionary decision making process that uses the dominant group’s culture as the norm when evaluating those who are not members of the dominant group?; and
- organizational culture – i.e. the inclusivity of “shared patterns of informal social behaviour, such as communication, decision-making and interpersonal relationships, that are the evidence of deeply held and largely unconscious values, assumptions and behavioural norms.”
Requests for the kinds of documents that would demonstrate the above are often broad and as such, the Respondent-employer will often argue that the request is overly broad, would be unduly onerous to produce, and amounts to nothing more than a ‘fishing expedition’.
The Tribunal’s job is to weigh the probative value of such documents to the issues of the case against the prejudicial effects to the Respondent for having to produce them. The Tribunal’s approach has generally been in favour of broader production (Nassiah v. Peel Regional Police Services Board, 2006 HRTO 18 – link to decision), but the Applicant must still demonstrate a nexus between the information or document sought and issues in dispute (Lampi v Princess House Products Canada, 2008 HRTO 333 – link to decision) – in other words, the Applicant must show that the documents are ‘arguably relevant’.
The test for ‘arguably relevant’ disclosure is not a particularly high bar (Lampi v Princess House Products Canada, 2008 HRTO 333 – link to decision), as the Tribunal is well aware that broad production is necessary to demonstrate the full circumstances between the parties and that considering the entire context is necessary for the proper analysis of discrimination claims.
As noted above, in deciding what documents are ‘arguably relevant’ in regard to the systemic aspects of a discrimination case, the Applicant should be mindful to numerical data, policies and processes, and organizational culture. From an evidentiary point of view, there are three important types of evidence in systemic discrimination case: (1) internal reports, (2) statistics, and (3) witness testimony (both expert and anecdotal).
Internal reports – Knowledge of internal practices, policies and procedures is often in the hands of the Respondent-employer and inaccessible to the Applicant. While the documents may not be directly related to the Applicant, internal reports can prove to be invaluable pieces of circumstantial evidence, especially if it demonstrates the Respondent-employer had knowledge of the existence of barriers and failed to take action. However, internal reports can become harder to locate with the passage of time and, as noted above, it is difficult for Applicants to know exactly what they are looking for, which will inevitably lead to allegations of a ‘fishing expedition’ when such reports are requested.
Statistical Evidence –While numerical data demonstrating underrepresentation or unequal distribution, like internal reports, does not go directly to the individual discrimination, it can be strong circumstantial evidence, especially in cases where the organization is unknowingly perpetuating barriers and it is necessary to hone in on significant patterns demonstrating the exclusion of protected groups. However, there are limitations to this type of evidence, as it can often be misinterpreted or misused, the Applicant may have a hard time finding a large enough sample size to demonstrate statistical significance, and it often requires the use of experts to interpret the data, who may be difficult to find or may be pit against competing experts interpreting the results differently.
Expert Witness Testimony – As noted above, expert evidence may be required to establish systemic discrimination as the experts may be necessary to explain the nature of systemic discrimination and to make a connection between the nature of systemic discrimination and the evidence. Finding an appropriate and willing expert can be difficult. The Applicant must meet the test for admissibility of expert evidence established by the Supreme Court of Canada in R v Mohan, (1994) 2 SCR 9 (link to decision):
- The testimony is relevant.
- The testimony is necessary to assisting the trier-of-fact.
- There is no exclusionary evidentiary rule barring the expert’s testimony.
- The expert is properly qualified and possesses special skills, knowledge or experience likely to be outside the knowledge or experience of the trier-of-fact.
Impartiality of the expert witness is another important factor, as the purpose of the expert witness is to assist the trier-of-fact and not advocate for an Applicant or Respondent.
Anecdotal Witness Testimony – This testimony can be very helpful in that it may demonstrate the disparate impact of a policy that is neutral on the surface and the intangible aspects of systemic discrimination, such as informal barriers. It often falls under ‘similar fact evidence’, in which the testimony demonstrates a pattern exists that weighs in favour of a finding of discrimination. However, the admissibility of such evidence can be a contentious issue, and it can prove difficult to find such witnesses. Both of these challenges will be covered in further detail below.
Admissibility of Similar Fact Evidence
An order for production does not necessarily mean that the evidence will ultimately be admissible at hearing (Lampi v Princess House Products Canada, 2008 HRTO 333 – link to decision). The documents produced may be classified as ‘similar fact evidence’ and, like ‘similar fact evidence’ provided through anecdotal witness testimony, Respondents will often object to admissibility of such evidence due to the prejudicial effects on the Respondents, namely that it may be misleading, that the proceedings may be sidetracked by irrelevant issues and that scare resources may be used for ‘fishing expeditions’.
However, as noted above, ‘similar fact evidence’ is often a vital component to establishing a systemic case. While there are prejudicial effects to the Respondents for admitting this kind evidence, there are a number of benefits that may outweigh these prejudicial effects, as outlined by the Tribunal in Washington v Toronto Police Services Board, 2009 HRTO 217 (link to decision):
Probative value of similar fact evidence often comes from the similarity of the alleged similar facts to the conduct at issue in the proceeding. The more the other allegations resemble those at issue in the proceeding, the more likely it is that they will be admitted. More alleged similar acts will often increase probative value. In considering probative value, the existence of a pattern may be important circumstantial evidence that weighs in favour of a finding of discrimination. Moreover, as noted by the Tribunal in Nassiah, the Tribunal’s approach generally favours broader production.
In deciding whether to admit such evidence, the Tribunal must engage in a weighing of the benefits of similar fact evidence to assisting the Tribunal determining the issues before it, against the potential prejudice both to the hearing process, which may potentially be sidetracked by irrelevant issues, and to the party whose character is placed into question through such evidence (Sinclair v City of London, 2008 HRTO 48 – link to decision). Furthermore, the Tribunal will be mindful to the fact that the similar fact evidence must be similar enough to the allegations of the Applicant to be relevant and probative to the Applicant’s case. For example, in the case Ogunyankin v Queen’s University, 2011 HRTO 111 (link to decision), the Tribunal did not accept evidence given by a faculty member from an entirely different department and faculty, as the proposed evidence of this witness was not similar enough to the issue at hand and would distract from the focus of the case. The Tribunal held that there needs to be a connection to those responsible for the alleged discriminatory acts.
Other Issues that Arise with Witness Testimony
In selecting witnesses to testify, it is first important to examine how compelling the evidence of each witness is, to determine who suffered the greatest detrimental impact, and to try and demonstrate a broad range of effects that the discrimination has had. It is not necessary to call all members of a group to testify. A sufficient number of witnesses that can demonstrate the negative effects of the discrimination can provide a satisfactory evidentiary basis, but the determination of the number of witnesses will depend on the size of the organization and the scope of the problem.
It can be challenging to locate witnesses (i.e. some may have retired or moved onto other places of employment), or to find willing witnesses (i.e. many witnesses may still be employed by the Respondent-employer and may fear reprisal if they provide their testimony). It may prove impossible to persuade such witnesses to give testimony, and it may be necessary to obtain subpoenas to force current employees to testify.
The Prima Facie Case
At the conclusion of the Applicant’s evidence, the Tribunal must be persuaded that a prima facie has been made out before the burden shifts to the Respondent to provide a credible and rational explanation demonstrating, on a balance of probabilities, that its actions were not discriminatory (Jagait v IN TECH Risk Management, 2009 HRTO 779 – link to decision). In other words, if the Applicant’s allegations regarding discrimination are to be believed as is, they are sufficient to justify a finding in the Applicant’s favour (Ontario (Human Rights Commission) v. Simpsons Sears Ltd., 1985 CanLII 18 (SCC),  2 S.C.R. 536 – link to decision).
The general test for a prima facie case of discrimination is as follows:
- the Applicant belongs to a group that is protected by the Code;
- the Applicant was subjected to adverse treatment; and
- the Applicant’s gender, race, colour or ancestry was a factor in the alleged adverse treatment (Shaw v Phipps, 2012 ONCA 155 – link to decision).
More specifically, the test for a prima facie case of discrimination in hiring or promotion practices, as would be the situation in a ‘glass ceiling’ case, was outlined in Shakes v Rex Pak Ltd., (1981) 3 C.H.R.R. D/1001 (link to decision) as follows:
- the Applicant was qualified for particular employment;
- the Applicant was not hired; and
- someone no better qualified but lacking the distinguishing feature which is the gravamen of the human rights complaint subsequently obtained the position.
However, the Tribunal has held however that this test “is not a rigid approach that defines a prima facie case in every hiring case” (Zhao v Toronto Community Housing Corporation, 2012 HRTO 2187 – link to decision).
In establishing a prima facie case of systemic, ‘glass ceiling’ discrimination specifically, the Applicant must also demonstrate a connection between the systemic evidence and the evidence of discrimination against the Applicant in particular, as Applicants may not advance claims of systemic discrimination independent of their claim that their own rights have been violated (Carasco v University of Windsor, 2012 HRTO 195 – link to decision).
The threshold for establishing a prima facie case of discrimination is not high. The Tribunal does not hold Applicants to exacting standards of proof at this stage given its access-to –justice mandate and because the Tribunal is aware of the fact that discrimination is often not overt and that relevant evidence is possessed by the employer and not in the hands of the employee (Jagait v IN TECH Risk Management, 2009 HRTO 779 – link to decision; Matthews v. C.A.W. Local 1285, 2010 HRTO 1116 – link to decision).
Upon a hearing of the Respondent’s evidence and explanation to the allegations, the ultimate issue before the Tribunal is “whether an inference of discrimination is more probable from the evidence than the actual explanations offered by the respondent” (Clennon v Toronto East General Hospital, 2009 HRTO 1242 – link to decision). However, if an Applicant clearly fails to establish a prima facie case, the Tribunal will not require the Respondent to make out a reasonable explanation.
Due to the complex evidentiary issues involved in litigating systemic, ‘glass ceiling’ discrimination cases, these cases are not common. However, systemic discrimination itself is very common. Recently, bakerlaw assisted in the settlement of a case in which systemic, ‘glass ceiling’ discrimination was alleged against the Respondent-employer. While the settlement is confidential, and the Applicant did not have an opportunity to argue these issues prior to settlement in this case, bakerlaw foresees that they will indeed be argued at some point in the not too distant future.