Systemic discrimination can be defined as discrimination, usually involuntary, due to methods, practices and policies for recruiting, hiring and promotion which are not necessarily designed to promote discrimination but which nevertheless lead to the exclusion of a specific group.
In this case, Gaz Métropolitain Inc. (hereinafter "Gaz Métro") set up a special hiring competition program in 1995 intended to promote the hiring of women as system attendants. After a number of female candidates were rejected, Action Travail des Femmes du Québec Inc. filed a complaint with the Commission des droits de la personne et des droits de la jeunesse (hereinafter the "Commission") alleging that Gaz Métro’s requirements, criteria and procedures caused the overall selection process to discriminate against women. Following Gaz Métro’s refusal to institute measures to remedy the discriminatory situation, the Commission referred the matter to the Human Rights Tribunal (hereinafter the "Tribunal").
The Tribunal began by studying the special recruitment steps instituted by Gaz Métro to determine if they would entail a disproportionate exclusion of women. Once such exclusion was established, the Tribunal then checked if it was "based on the aptitudes or qualifications required for an employment". Gaz Métro then had to establish that the recruiting standards had been adopted for a purpose rationally linked to the performance of the system attendant job or its objective to recruit more women, and that such standards were reasonably necessary to achieve that purpose. Regarding the latter requirement, Gaz Métro had to establish that it could not get the work done with female employees without undue hardship.
According to the Tribunal, the requirement to have a Class 3 driver’s license before hiring was discriminatory against women, because women are extremely under-represented in the group of people holding that type of license. In addition, the women’s only option was to hurry up and get such a license before being hired which, in view of the cost of the driver’s education courses, was definitely dissuasive. The Tribunal found that Gaz Métro had not established a rational link between the requirement to hold a Class 3 licence before hiring, and the immediate functionality objective for the system trainees. Nor did Gaz Métro demonstrate that downgrading that requirement would cause it undue hardship.
Gaz Métro required its female candidates to have "non-traditional" experience, that is, experience in a job usually held by men. The Tribunal held that this requirement, which was not imposed on male candidates, and which Gaz Métro interpreted in a highly suggestive manner, constituted gender-based discrimination. Furthermore, such a requirement was not rationally linked to Gaz Métro’s objective of hiring more women.
The pre-interview also disproportionately excluded women, in particular because it only applied to women, because the unstructured and unstandardized interview led to a discretionary and subjective evaluation of the candidates and because additional requirements not applicable to men were imposed on the female candidates. Furthermore, the requirement for that interview was not rationally linked to the stated objective, that is, to prioritize the hiring of women.
The Tribunal also found that the theoretical exam the female candidates were required to pass excluded them disproportionately, in that it included a mechanical aptitude test (known as the "Bennett test") which accounted for 15% of the questions. From the evidence, that test definitely worked against women because women generally have less mechanical knowledge than men. The Tribunal found that use of the Bennett test was not warranted for the tasks of the system attendant job.
The Tribunal found that the practical exam also disproportionately excluded women in view of the lack of accommodation measures adapted to the physical characteristics of the candidates and the different conditions imposed on some of them during that exam. Furthermore, the exemption from that exam granted to holders of a professional specialization certificate in natural gas equipment repair could only apply to men, since only men held that type of diploma in the greater Montreal region from 1994 to 1998. The Tribunal acknowledged that the practical exam bore some rationality in terms of the system attendant job. However, Gaz Métro had failed to demonstrate that it could not, without undue hardship, accommodate the female candidates by adapting the test so they could be evaluated based on their real aptitude to perform the tasks essential to the job. According to the Tribunal, [TRANSLATION] "a practical exam designed by and for men […] cannot adequately evaluate the performance of women nor, consequently, reliably determine their efficiency once hired for the job".
Finally, the Tribunal found that a medical exam undergone by one candidate had led to a discriminatory refusal to hire her because she was pregnant.
The Tribunal found from this analysis that the recruiting and hiring process at Gaz Métro systemically discriminated and disproportionately excluded women from being hired as system attendants, and was part of [TRANSLATION] "an institutional culture tainted with an unconscious bias and prejudice against women".
In addition to ordering Gaz Métro to develop an equal opportunity program which would eliminate the discriminatory requirements, the Tribunal ordered it to pay the excluded candidates damages to compensate them for the lost opportunity to demonstrate their aptitudes and qualifications for a position as a system attendant without being subjected to a discriminatory selection process, plus moral damages for discrimination based on gender or pregnancy.
Gaz Métro was also ordered to pay punitive damages to the candidates in view of the intentional nature of the unlawful interference with their right to apply for a job without discrimination based on gender or pregnancy. In addition, the Tribunal ordered Gaz Métro to give a system attendant job to the candidate who had been rejected due to her pregnancy, with retroactive recognition of all attendant rights and privileges. The Tribunal also ordered it to recall the other candidates to a selection process free of discrimination.