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Stevenson v. All-Can Travel Inc.

Report of the Board of Inquiry Between Mark Stevenson, complainant, and All-Can Travel Inc, respondent

Prince Edward Island Board of Inquiry Under the Human Rights Act G.A. Lyle

July 12, 1990
(17 paras.)

Appearances:
 

Mark Stevenson, represented himself.
Andrew Jamieson, for All-Can Travel Inc.
Valerie Moore, P.E.I. Human Rights Commission.
David Hammond, for the Board of Inquiry.


FACTS:

1      The Complainant, Darrell Mark Stevenson, born February 16, 1963, residing in the Community of Sherwood, Prince Edward Island, placed a call, on September 9, 1990, to All-Can Travel Inc. seeking employment pursuant to an advertisement that appeared in the Charlottetown Guardian on September 8, 1987.  The advertisement advertised for a travel consultant stating:
 

Applicants must be outgoing.  Probably had experience in the service industry.  Ready for challenging and pleasant work.  Call for an appointment 566-5001, All-Can Travel.

2      The Complainant's evidence was that he telephoned All-Can Travel the following day, September 9, 1987, requesting an appointment for the position as advertised.  The Complainant testified that he left a message on his first telephone call asking that a call be returned.  The Complainant testified that not having received a return call, he placed a second call later in the day and spoke, at that time, to a person he believed to be the business owner, Mr. Jamieson.  Mr. Stevenson continued in his evidence stated that:
 

The gentleman informed me that they were not considering men for the position.  That their policy, in keeping with the travel industry, did not have men on staff.  He told me to examine other travel agencies and I would find similar practices.  He told me that the public believed that women could better served the consumer, regarding travel arrangements-because they sometimes perceive that women can meet their needs better.

3      The Complainant was then asked if he continued with making his application, and his evidence was that he did not.  As the result of the response in the telephone conversation, he testified that he was totally discouraged from making the application since he believed it to be a total waste of time under the circumstances.

4      The Complainant testified that he had no experience in the travel industry trade, however, he did indicate that he had working experience with the public in public relations situations, and that he felt qualified through his working experience in theatre and theatre related circumstances to give him sufficient experience in dealing with the public, communication, and inter-personnel skills to succeed at the job advertised.  However, Mr. Stevenson testified that as a result of the telephone conversation with the person alleged to be Andrew Jamieson, he did not have the opportunity to put his supposed qualifications to the test, having been totally discouraged by the party representing All-Can Travel Inc.

5      Mr. Andrew Jamieson's evidence indicated to the Commission that he did control the day-to-day operation, affairs, and management of the company in 1987, and still does so to date.  He also testified that he is the sole owner of the company.  He testified that the company, at present, has scaled down its operations, but in 1987, was in full operation and employed as many as four individuals at a time.  Mr. Jamieson testified that the Company operated as a general travel agency.  Mr. Jamieson, as a male, was asked by the Commission's Counsel, "Is there anything, in particular, to the operation of the travel industry that makes it impossible or difficult for you to perform you duties as a travel agency? Mr. Jamieson replied, "Personally, no."

6      Mr. Jamieson was then asked by the Commission's Counsel, "If he had employed male travel consultants." He testified that he had on two occasions.  He testified that one of them was with him for three years and the other was with him for three days.  Upon being asked if the one who was employed by him for three years did a good job, his evidence was, "that he had and he is still in the industry." Upon being asked if he did the job as competently as a female, Mr. Jamieson replied "I don't believe so.  But he does the job reasonably competent.  Yes."

7      Mr. Jamieson further testified that he drafted the ad that appeared in the Guardian and arranged to have it published, and being asked if he was looking for someone who had experience in the travel agency business, Mr. Jamieson responded, "Not entirely.  No, not entirely." He further testified that he received, "over 60 responses," to the advertisement.  On being asked if he kept a record of the number of inquiries and who they were from, he testified that "they were too numerous to spend my time to do it." Then upon being asked to give an indication of the gender response ratio, Mr. Jamieson testified, "No, I can't except, well, I can, its just 80:20, 80:15, 85:15.  Women to men.  Would have been the response." On being questioned about the female to male ratio of the travel consultants in the industry, Mr. Jamieson's evidence was, "I would say it was something like 95% to 5%." Mr. Jamieson testified that he did the interviewing and when asked how many interviews he conducted, his response was, "It's hard to say, but I would say no more than 10." On being asked if he hired any of the interviewed people, he responded, "No".  Mr. Jamieson testified that he hired his daughter, who was at that time a high school student.  Mr. Jamieson did not recall the call from Mr. Stevenson, nor, the alleged conversation with Mr. Stevenson. He admits that he was the only male at All-Can Travel Inc., and that if Mr. Stevenson spoke to a male at All-Can Travel Inc., then it would have been himself.  Mr. Jamieson, in response to the question, "Is it possible that you may have given that response?" stated, "It's possible before I, that, without preventing somebody from putting a resume in, that I told him my preference, but that didn't stop him from putting in, putting a resume in."

8      On being asked several questions by the Board of Inquiry, Mr. Jamieson conveyed the following belief:
 
Q.

Good.  And that's your belief, that the female is more stable in the travel industry than the male.

A.

That's the practice.  That's the facts of the matter, of the industry, Mr. Lyle.  That's the facts, that the female population, those that stick with the industry, because there are some of those that are in and out, because they don't like it, because of the pressure cooker situation that it sometimes can be, so there's some females that don't like it, too, and leave, but the preponderance of people that stay in the industry are female, as opposed to male.  Male, it doesn't pay, as my daughter testified, the rate of pay amongst travel agencies is low, in relation to, for a man to support his family.

Q.

So because of that particular belief on your part, and, as you say, it's your experience, then this would be the reason why you have preference for female employees, as opposed to male employees?

A.

It would certainly sway the decisions I make.  It's not, as I said, I've hired men in the past.  I have hired men in the past.  But it would, um, well, they still have to come to me and sell the job.  It's not inconceivable that somebody could do it, if they were a super salesman.  I'm not saying that.  You know, I'm a sucker for a good salesman.  That's what I basically am, Mr. Lyle.  If somebody does a super selling job on me, I buy it.  And that's what a person has to do to get work, and a phone call won't do it.

Q.

But the hurdle would be bigger, for a man to sell you, than it would be for a woman.  Is that basically (unclear) --.

A.

That possibly could be, because those are the facts of the industry.  You know, when I go and, when you invest your money, you take into account what the industry at large is telling you, what the economy out there is telling you.  You base those decisions on past history.  And you can't, well, you know, you don't want to put your money in something that's gone bankrupt.  It would be kind of foolish to do that.

9      Upon being asked if it was possible that he could have conveyed in a telephone conversation to a caller applying for a job, a preference based on the foregoing belief, his response was,
 

It's possible.  It's possible that, in conversation with people, that I would be frank with them on the fact that they have to do a selling job on me, and that what happens, that while not cutting them off, I don't deny the fact they've got an obstacle which is there because of the trends and the patterns, history of the economy. I don't set, I don't establish them.  They're already there, in the industry.

STANDARD PROOF:

10      In cases such as this, it is not unusual to have lack of direct evidence and as a result the decision has to be based upon inference from purely circumstantial evidence.  An example of this is in the Kickham v. City of Charlottetown Board of Inquiry reported in 1986 (7 C.H.R.R. D/3339).  In anticipation of this, the Board of Inquiry advised that the complaint would have to be proved by Mr. Stevenson on the balance of probabilities.  This is set out in, Proving Discrimination in Canada (Toronto) Carswell, 1987, by B. Vizkelery, where the usual standard of proof, in discrimination cases, is a civil standard of preponderance. The appropriate test in matters involving circumstantial evidence will be consistent with this standard, and may therefore be formulated in this matter as: An inference of discrimination may be drawn where the evidence offered in support of it renders such an inference more probable than the other possible inferences or hypothesis.

11      I am satisfied that in the circumstances of this case there is sufficient evidence from the Complainant to warrant an explanation from the Respondent.  Especially the evidence of Mr. Stevenson indicating that he was discouraged from making an application, and the evidence from Mr. Jamieson suggests that, in all probability, he could have made such comments.

12      In presenting their evidence, I found the Complainant to be sincere and truthful, whereas, I found Mr. Jamieson to be aggressive and evasive, although truthful in his answers when placed in a position where he could not evade the question.

13      As a result of hearing all the evidence of both Mr. Jamieson and Mr. Stevenson, I have concluded that in all probability Mr. Jamieson may have made those comments to Mr. Stevenson, and as a direct result of those comments, Mr. Stevenson was totally discouraged from making, or forwarding, an application to Mr. Jamieson.  As it turned out Mr. Jamieson did not hire any of the applicants that had applied for the job, therefore, I have concluded that even though Mr. Stevenson was discouraged from submitting his application, even if he had made the application, he would not have received the job.  This, however, does not answer the question of whether there was, in actual fact, discrimination. I find that Mr. Jamieson's probable remarks to Mr. Stevenson on the telephone were discriminatory, based on Mr. Stevenson's sex, and that there was sufficient implication that Mr. Stevenson's application would not be considered even if he had submitted it, simply because he was a male.

14      In defence of this position, Mr. Jamieson indicates that it is the industry norm for travel consultants to be female, and that the female employee is a bona fide occupational requirement in the circumstances.  To quote the Honourable Mr. Justice McIntyre in the Supreme Court of Canada case of the Ontario Human Rights Commission and Bruce Dunlop et al. v. The Borough of Etobicoke, (1982), 3 C.H.R.R. D/781,
 

To be a bona fide occupational qualification and requirement a limitation must be imposed honestly in good faith, and in the sincerely held belief that such limitation is imposed in the interest of the adequate performance of the work involved with all reasonable dispatch, safety and economy, and not for ulterior or extraneous reasons aimed at objectives which could defeat the purpose of the Code.  In addition it must be related in an objective sense to the performance of the employment concerned, in that it is reasonably necessary to assure the efficient and economical performance of the job without endangering the employee, his fellow employees and the general public.

For the benefit of the Respondent, I find that in this day and age the barriers of sex discrimination are being broken down.  It has been proven time after time, to the community-at-large that men and women alike are as good or better then the sex previously stereotyped as suitable for such tasks.

15      To paraphrase Mr. Justice McIntyre in the Margaret Coldwell, et al. v. St Thomas Aquinas High School et al., (1985) 6 C.H.R.R. D/2643, at paragraph, 21824,
 

It will only be in rare circumstances that such a factor as sex can pass the test of bona fide qualification.

16      I find, as a fact, that there was no evidence provided to the Inquiry that sex had any bearing to the performance of the job, to the safety of employees or in the public interest.  What was alleged to the Inquiry was purely a stereotype without any basis in fact.  Therefore, Mr. Jamieson's argument in justification of his admitted probability of discrimination has no basis.

17      I therefore recommend to the Human Rights Commission and the Minister of Labour, my finding of sexual discrimination by Mr. Andrew Jamieson, President and employee of All-Can Travel Inc., and vicariously, All-Can Travel Inc. against Mr. Darrell Mark Stevenson on September 9, 1987. Further, I recommend to the Human Rights Commission and the Minister of Labour that Mr. Stevenson, as a result of this discrimination, did not suffer a financial loss since I find, as a fact, that Mr. Stevenson would not have been hired even if he had continued with the application process and even if sexual discrimination did not take place.  However, I do recommend to the Human Rights Commission and the Minister of Labour that Mr. Stevenson suffered humiliation and loss of self-respect.  It is difficult to place a monetary value of the damages which one incurs due to the loss of self-worth, as the result of this type of humiliation.  However, in the spirit of the Code, I recommend that the compensation of $500.00 would be a proper award to Mr. Stevenson to be paid by All-Can Travel Inc.  Furthermore, I would recommend that the Human Rights Commission and the Minister of Labour suggest to the Respondent that he should review the P.E.I. Human Rights Act, and conduct his practices and procedures as prescribed and set out therein.
 
 

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