Discrimination in the professions

  • July 23, 2015
  • Phil Emery

Bakerlaw has seen a series of cases recently that relate to discrimination in the professions. These cases have reminded us that regulatory bodies and employers often overlook the potential for discrimination both against professionals and by professionals.

To become a professional, an individual must meet certain standards that are set by regulatory bodies. These standards can often inadvertently exclude certain groups of people. In several recent bakerlaw cases, professionals have been excluded from employment or certification because of their disability or place of origin.

For example, we have represented students with disabilities who have had difficulty passing exams to become professionals. This includes a student with a learning disability who wanted to become a lawyer and applied to write the LSAT with double the time and a quiet room to write, as well as a nursing student who failed his registration exam with the College of Nurses because of an acute vision issue that had not yet been diagnosed. In both cases, we were able to obtain favourable resolutions for the clients.

In other cases, employers may discriminate against a professional by requiring a certain standard of certification that is not necessary to perform the job. The Ontario Human Rights Commission has written about the requirement of “Canadian experience,” which excludes many qualified employees, including professionals, from the job market in Canada (link to policy).

We currently represent a client who works as a psychiatrist and filed a complaint of discrimination based on place of origin against the Canadian Forces. Our client originally trained and worked in the United States, including work with the U.S. military. After coming to Canada, he received recognition as a psychiatrist in Ontario and applied to work for the Canadian Forces. His application was rejected because the Canadian Forces required a certification with the Royal College of Physicians and Surgeons of Canada – a credential that is not necessary to practice as a psychiatrist and is difficult for many foreign-trained doctors to obtain. By requiring this credential, the Canadian Forces effectively screened out many foreign-trained doctors when this credential was not related to the quality of the doctor or the requirements of the job. Read more about this case here (link to article).

As a further example, we have recently filed a human rights application on behalf of two women in the 50s who worked as pharmacy technicians for decades. The Ontario College of Pharmacists has recently implemented regulatory standards for pharmacy technicians, and so existing technicians have been completing a series of bridging courses and exams to become registered with the College. These two women worked at a hospital that set and early deadline for completing of the registration process. Both women were unable to complete the process by the hospital’s deadline, and their employment was terminated. We have alleged that the hospital’s deadline was discriminatory because older employees who are further from their education require additional time and support to meet these types of regulatory requirements. In addition, one of the women was suffering from a serious disability that prevented her from completing the registration process.

In other cases, professionals may provide services in a way that discriminates against a patient or client. In this case, it is the job of the regulatory body to intervene and impose discipline on the professional for engaging in discriminatory conduct.

We have represented a woman with post-polio syndrome who was denied proper treatment for her rectal cancer based on her disability. Her treating physician simply assumed that surgery—the most effective treatment for rectal cancer—would not be an option for her because of her post-polio syndrome. This doctor did not take a medical history of the patient or consult anyone with knowledge of the post-polio syndrome. Our client later received surgery and did not experience any of the complications that the doctor assumed would occur.

Our client filed a complaint with the College of Physicians and Surgeons of Ontario. The College reviewed her complaint and advised the doctor to communicate better with patients but did not address her allegations of discrimination. We assisted her with a review of this decision at the Health Professions Appeals and Review Board, alleging that discrimination was a key factor in her case that the College should have considered. The outcome of this decision is pending. Read more about this case here (link to article).

The issue of discrimination in the professionals is clearly important – professionals often have a significant amount of responsibility for the well-being of their patients and clients, and this responsibility must be exercised in a non-discriminatory way. Regulatory bodies and employers must also be aware of the discriminatory barriers that certain standards can create for people based on a disability, family status, place of origin or other protected ground. While we have not yet taken on a case related to mental health, we anticipate that this will be a growing area of discrimination in the professions based on the continued stigma experienced by those with mental disabilities.

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