Court Rules For Bank Employee Claiming He Was Denied Promotion Because He’s Heterosexual

The Federal Court of Canada ruled in favor of a male employee for the Canadian Imperial Bank of Commerce who said his boss informed him he had “no hope” for promotion unless he joined a “group” of gay and bisexual men. The employee, Aaren Jagadeesh, who is heterosexual, filed a discrimination complaint in April 2017, but the Canadian Human Rights Commission dismissed the complaint in November 2018, writing, “Before rendering the decision, the Commission reviewed the report disclosed to you previously and any submission(s) filed in response to the report. After examining this information, the Commission decided … to dismiss the complaint because, having regard to all of the circumstances of the complaint, further inquiry is not warranted.”

But the Federal Court has ordered a new investigation and assessment.

The National Post reports, “An investigator with the human rights commission was assigned to look into the complaint. CIBC officials were interviewed — but not the manager who allegedly made the remarks about only gay and bisexual men being promoted. That manager, the investigator was told, was on ‘extended leave of absence.’” 

Jagadeesh was employed by the Canadian Imperial Bank of Commerce in Toronto as a financial services representative. He claims he was repeatedly turned down for promotions. Jagadeesh said he met alone with his manager on Sept. 15, 2015, and the manager said every male manager in the office was was gay or bisexual, and followed by informing him of his zero chances for promotion unless he joined the group.

The National Post adds, “Jagadeesh claims the manager said this was why young male employees with little or no qualifications were promoted; told him to ‘be smart and learn’; and then allegedly asked Jagadeesh what he thought of him.” According to Jagadeesh, he told his boss that he simply viewed him as his manager, that he had no problem working with anyone, and that he was heterosexual.

Another factor in the case: court records indicate that the job entailed contacting 60 to 70 customers each day; the bank measured employees’ performances by “wrap time,” indicating no more than 30 seconds between calls, and also measured “adherence targets,” a policy whereby employees were reputedly required to be on the phone 96% of the time they spent at work.

Jagadeesh claimed he eventually suffered severe throat and vocal cord pain, prompting his doctor to recommend a less strenuous schedule. Jagadeesh said the bank preferred he go on short-term disability. A specialist who had been recommended by a doctor chosen by the bank diagnosed Jagadeesh with muscle tension dysphonia and recommended regular medical breaks in order for him to heal. Jagadeesh claimed that prompted CIBC to discriminate against him by cutting his pay, bonuses and incentives.  His job was terminated in May 2016. 

Justice Janet M. Fuhrer of the Federal Court wrote in her decision:

… it must be noted the Commission did not review any of Mr. Jagadeesh’s evidence itself, instead relying exclusively on the Investigator’s summarization of this evidence. This is evident because the Commission, though it acknowledged the allegations of breach of procedural fairness and natural justice in Mr. Jagadeesh’s Notice of Application, declined to provide Mr. Jagadeesh’s rebuttal evidence as part of the certified tribunal record, asserting it was not before the decision maker and therefore shielded from review …

Mr. Jagadeesh was not asking the Commission to re-conduct the investigation; instead, he directly pointed to parts of his Reply submissions he believed the Investigator overlooked or otherwise misconstrued, and requested the Commission consider this. In such circumstances, where the Applicant alleges the Investigator’s Section 40/41 Report is under-inclusive and where the Applicant points to evidence previously provided to substantiate that allegation, the Commission is required to consider the evidence. Failing to do so is further evidence that their review of his Reply submissions was not thorough.

She concluded, “Based on the Commission’s lack of thoroughness in reviewing the grounds of Mr. Jagadeesh’s complaint, I grant the application for judicial review. The decision under review is set aside and the matter is returned to the Commission to conduct a fresh investigation, with a different investigator, of Mr. Jagadeesh’s complaint and render a new decision based on the full record.”