McCue v. UBC (No. 3), 2016 BCHRT 9, is an interesting decision from the BC Human Rights Tribunal, released 15 January 2016. The decision arouse out of a no evidence motion made by the University. The application was denied and the complaint was allowed to proceed to further hearing.
McCue complained that UBC discriminated against her as a First Nations person on a number of grounds, including her ancestry and/or sex, when it applied the standard for promotion and tenure to her. Ms. McCue had ben employed on tenure track as an Assistant Professor in the Faculty of Law and Director of First Nations Legal Studies, effective July 1, 2000. She was eligible to be considered for promotion to associate professor and for tenure in her seventh year.
The Tribunal stated:
[124] There is ample evidence to support that Ms. McCue failed in her application for tenure and promotion because she was unable ultimately to satisfy UBC that she had a sufficient quantity and quality of scholarship to meet the standard of the Law Faculty for success on such applications.
Among others, the University argued:
[134] More powerfully, UBC has submitted that, on the evidence before the Tribunal at this point, Ms. McCue’s failure to meet the standards for tenure and promotion are a matter of her choice. In that regard, they point to the admission by Ms. McCue that there is nothing about indigeneity that prevents an indigenous person from having the capability of meeting the University’s requirements. They also point to the fact that each and every one of the three indigenous witnesses called to support Ms. McCue’s case had, in order to establish their own educational credentials, met such standards. Further, UBC relies on evidence from those witnesses that there are good reasons for peer-reviewed publication in terms of the ability to disseminate information which it is important to the indigenous community be disseminated. Ms. McCue answers by submitting that, while she may have chosen not to publish in the Western sense, that choice was driven by her indigeneity and that UBC should have responded to her requests that the criteria that make up the standards for UBC be re-evaluated to overcome her difficulties with them. Ms. McCue argues that UBC has failed to accommodate her indigeneity by addressing the impact upon her of her indigenous characteristics as related to her ability to meet UBC’s standards. She says they have unnecessarily and narrowly interpreted their own Collective Agreement and Guidelines language to the point that she would incur too great a personal cost, due to her indigeneity, to meet UBC’s standards although she is capable of doing so. She testified that she is not looking for a decision that she is entitled to her promotion and tenure, but only that she should have been given a fair opportunity, given her deep-seated beliefs, to accomplish it.
However, the Tribunal noted:
[136] Whether looked at in the context of race, gender, mental disability or physical disability, I accept that a complainant’s choice compelled by such ground, as opposed to a choice based solely on personal preference unrelated to a ground in the Code, may be sufficient to ground a finding of a nexus between the ground and an adverse impact flowing from that choice and the application of a Standard or rule.
137] UBC relies on evidence before the Tribunal which clearly demonstrates that Ms. McCue was warned annually from 2004 through 2010 that she was not meeting, indeed had not even commenced to meet, UBC’s expected standard for tenure and promotion. UBC has also taken issue with the timing of Ms. McCue’s request for a liberal interpretation of the Standard. Again, it is not necessary to decide the Merits of UBC’s argument. The question is whether the evidence of timing is necessarily fatal to Ms. McCue’s complaint. I find that it is not. The Tribunal imposes a duty to enquire on an employer which is in possession of knowledge suggesting physical or mental disability might be a factor in an employee’s unsatisfactory employment behaviour, Senyk v. WFG Agency Network (No. 2), 2008 BCHRT 376 (CanLII), para. 333. I see no logical reason to restrict the application of such duty to instances of physical or mental disability. Ms. McCue’s failure to raise her need for accommodation with UBC much earlier in the process certainly complicated the issue. However, in this case, UBC was made aware of Ms. McCue’s concerns, albeit obliquely, prior to the Faculty Committee’s decision and certainly well before President Toope’s ultimate decision.
[138] In essence, Ms. McCue argues that the established indigenous cultural traits she claims as her own influenced her failure to meet UBC’s Standard, such that the grounds are a factor in the adverse impact. Without deciding that this would establish a prima facie case, I am satisfied that it could reasonably meet the test.
The Tribunal concluded:
[143] I am concerned as well that, not having heard from UBC, it is difficult to interpret the implications of the statements of UBC at each successive level of appeal that Ms. McCue was granted the broad interpretation that she sought. In all of the circumstances, I am both satisfied that the evidence is present which could allow Ms. McCue’s Complaint to succeed and that it would be inappropriate, in any event, to end this matter without a full examination of the evidence of both parties.