B.C. Human Rights Tribunal finds IIO discriminated against Indigenous job applicant, awards $51K

One of B.C.'s police oversight agencies has been ordered to pay more than $50,000 to an Indigenous woman it discriminated against during a hiring process.

In a decision issued earlier this month, the province's Human Rights Tribunal ruled against the Independent Investigations Office of B.C., finding that it relied – at least in part – on stereotypes when deciding to revoke an offer of employment to a Métis applicant. 

The applicant is referred to throughout the decision as "DS." Tribunal member Shannon Beckett agreed to keep her anonymous in the decision, agreeing with the applicant that "her privacy and safety interests outweigh the minimal public interest in knowing her name."

Beckett awarded DS $36,900.48 for lost wages and expenses associated with the application process, plus $15,000 as compensation for "injury to her dignity, feelings, and self-respect."

Reference concerns

According to the decision, DS applied for a job with the IIO – the agency tasked with investigating incidents involving police in B.C. that result in death or serious harm to a member of the public – in the spring of 2018.

As part of her application, she submitted three references, but did not include her current supervisor "or equivalent," which the IIO required applicants to do.

"I am uncomfortable and not prepared to give my current supervisor as a reference," DS wrote in a note to the IIO that is partially reproduced in the HRT decision.

"I have not worked long enough for him and he does not yet know my work ethic or skill set to the level of other references. I also think it’s unfair to put candidates in such a precarious position as it has the likelihood of jeopardizing one’s current position, especially in the absence of a firm job offer."

The IIO discussed the matter with DS and ultimately agreed that she wouldn't be required to provide contact information for her current employer.

Having reached this agreement, the IIO offered DS an investigator position, subject to the successful completion of an "enhanced security screening process." This process included DS taking a polygraph test and a variety of other steps to be taken by the provincial government's Personnel Screening and Security Office.

As part of this process, the PSSO again requested contact information for DS's current employer, which she objected to, citing the previous agreement regarding references.

"This matter was settled by way of agreement as discussed on May 24, 2018 when you extended the offer of employment," she wrote, in another piece of correspondence reproduced in the HRT decision.

"You are in breach of your undertaking that you would not contact my current employer."

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Polygraph tests

As the back-and-forth over the employer's contact information was ongoing, DS was also raising concerns about the polygraph test.

She told the tribunal she didn't know what to expect when she went to the IIO building to take the test, and she was shocked to discover when she got there that it would be recorded.

DS asked the retired Vancouver Police Department officer administering the polygraph how the recording would be stored, and found his answer – that he would hold onto the recording in his briefcase and then in his home office for a period of six months – unsatisfactory.

She also described the officer becoming visibly upset with her, slamming his notebook on the table and rudely telling her to leave the room, all of which he denied.

The polygraph administrator told the tribunal he didn't record anything because DS did not agree to being recorded.

"He testified that over the entire time he had been administering pre-employment polygraphs, this was the first time anyone had ever questioned or not agreed with the recording," the decision reads.

DS again expressed her displeasure with the process in written correspondence with the IIO, saying she'd be happy to reschedule the polygraph examination, but said there were "serious questions of privacy" that needed to be addressed.

"I am shocked at the low security afforded candidates, especially for such sensitive information as polygraph examination results," she wrote, according to the decision.

"I am not confident that such lax security measures are enough to keep out of a third parties’ control. My information, along with other candidates, has the enormous potential to be compromised."

DS requested a different polygraph administrator, but did not receive one. She ultimately completed the polygraph test at a second appointment a few weeks after the first.

She alleged that during the second appointment, the former VPD officer "made several inappropriate comments to her which demonstrated his discriminatory attitudes towards Indigenous women."

According to the decision, DS said these comments included asserting that women – in the polygraph administrator's experience – were better liars than men; saying many First Nations people in Bella Coola "were obese and drank pop and ate potato chips" in response to an answer from DS about her father going temporarily blind from diabetes; and asking her more than once what she was thinking about when answering a question about illegal sex and illegal drug use.

The former officer told the tribunal he did not remember whether he made the comment about women being better liars than men, but acknowledged discussing time he spent in Bella Coola, attributing the comments about obesity to a conversation he had with an Indigenous elder there.

Regarding the repeated questioning about sex and drugs, the polygraph administrator said it is his standard practice to return to questions where a person reacts more and ask them what was on their mind during their answer.

The administrator's final report to the PSSO said the polygraph test had not raised any concerns about hiring DS, according to the HRT decision.

'Overly adversarial'

The IIO ultimately withdrew its offer, not because of anything the PSSO found during its screening process, but because of concerns about the applicant's "overly adversarial" and "rude" communication with IIO staff.

Former chief civilian director Ronald MacDonald sent a letter to DS outlining the organization's "serious concerns" about her "communications and interactions" with both the IIO and PSSO.

"During this time you have questioned our integrity and alleged that the IIO has breached undertakings, failed to comply with policies, and misled you," the letter reads, as reproduced in the HRT decision.

"Among other matters you have registered your disappointment and dismay about senior IIO officials and claimed the IIO is unprofessional."

The letter went on to explain that MacDonald disagreed with her characterizations, but was more concerned about the way she had conducted herself in raising them.

"The duties of the investigator position in particular require public and stakeholder interactions that must build confidence and avoid unduly escalating situations," the excerpt reads. "The examples we have seen of your communication style to date clearly do not meet the necessary standard."

IIO officials denied to the tribunal that DS being Indigenous or a woman had any impact on her job offer being revoked.

'Explained by stereotype'

Beckett, the tribunal member, acknowledged that DS's adversarial communication style was part of the reason the IIO rescinded the job offer, but found it was not the only reason.

"I find it more likely than not that the IIO viewed DS through the stereotypical lens of a demanding, suspicious Indigenous woman, and that these views informed the decision to rescind the job offer," Beckett's decision reads.

"The IIO’s concerns about DS’s conduct in the enhanced security screening process that led it to rescind the offer, began with the view of DS as demanding, suspicious, and non-compliant: that she had improperly and unreasonably elevated her concern about the security of her personal information, did not have grounds for not continuing the first polygraph, and was motivated by trying to avoid having to complete the polygraph. Apart from the fact that DS did have a heightened concern, as an Indigenous woman, about the security of her personal information, this view of DS was not grounded in the evidence, and is explained by stereotype."

Beckett also found that the polygraph administrator's comments constituted a breach of B.C.'s Human Rights Code, but concluded that this breach did not form the basis for the IIO's decision to revoke its job offer to her.

Rather, the IIO's conduct was discriminatory on its own, according to Beckett's decision.

"I accept that the IIO believed that DS lacked key qualities and was not a good fit for their team," the decision reads. "I accept that the IIO had a basis for its belief. I also find, however, that the lens through which the IIO made and held onto to its belief was informed by stereotypes about DS as an Indigenous woman."

DS sought compensation for the difference between the amount of money she would have earned had she been hired by the IIO and the amount of money she actually made during the time she would've been on the IIO's six-month probationary period at the start of her work there.

She calculated this amount as $36,812.48, and Beckett accepted her calculation, noting that the IIO had not submitted an alternative estimate of her loss.

The tribunal member also awarded DS $88 for the cost of fingerprinting that was required as part of the application process, and would have been reimbursed by the IIO had she been hired.

With the $15,000 award for injury to dignity, feelings and self-respect, the total amount awarded to DS was $51,900.48, plus post-judgment interest.