Broad remedies for discrimination
Author: Daniel A. Lublin
This is the tale of Ali Tahmoupour, who claimed that discrimination cost him his job. He took on the RCMP in a seven-year battle culminating in 20 days of trial – and won.
Chasing his lifelong dream of becoming a police officer, Muslim Canadian Ali Tahmoupour entered the RCMP training academy in Regina, Saskatchewan. From the beginning, he claimed that he was discriminated against as a Muslim and Iranian. He stated that he was ridiculed for wearing a religious pendant and that his instructor was verbally abusive, directing significantly more attention to him than to others. He argued that the conditions for visible minorities made it more difficult to complete the training.
Part way through the training, Tahmoupour received a poor performance evaluation and was given one month to improve. One day before the deadline for improvement, two of his instructors prompted the termination of his training contract. Their reasoning was that he hadn’t shown any improvement and was going to receive another negative evaluation the next day.
Disputing the evaluations by claiming they weren’t an accurate representation of his performance and that discrimination created an environment where he couldn’t properly perform, Tahmoupour launched a complaint of discrimination. His complaint made its way to a hearing at the Canadian Human Rights Tribunal.
The Tribunal found that Tahmoupour was treated differently by his instructors and that they had attempted to distinguish him from other cadets based on his Muslim background. While some aspects of Tahmoupour’s performance were objectively poor, the Tribunal found that, in part, it was due to the environment. Relying on evidence that showed that visible minorities were three times more likely to fail the course than their counterparts, the Tribunal concluded that it was likely that Tahmoupour’s failure was the result of a climate of discrimination at the academy.
Ruling that “there is a serious possibility that had the discrimination not occurred, Mr. Tahmoupour would have successfully completed the training,” the tribunal ordered the RCMP to offer him reinstatement to the academy, salary for a two-year period following his termination, the difference between what his RCMP salary would have been and what he would have made in an average job, and damages for pain and suffering. The total award is estimated at over $500,000. Imagine what the damage award would be for an employee who earned, say, $100,000 a year.
This case highlights the broad remedial measures that human rights tribunals can order where discrimination is found. Given the tribunals’ willingness to award reinstatement; lost salary for years of lost employment, past and future, as a result of inability to work; public interest remedies; damages for pain and suffering; special compensation where discrimination was wilful or reckless and legal fees, employers ought to consider introducing zero-tolerance policies on discrimination or harassment and offering a straightforward, reprisal-free, complaints process for their employees.