UPDATE: COURT GAVE GREEN LIGHT TO BLACK GAY SOCIAL WORK STUDENT WHO TOOK HUMAN RIGHTS COMMISSION TO COURT FOR FAILING TO APPLY EQUALITY LAW
Montreal, January 9, 2015 --- The Quebec Superior Court today gave a green light to a Black gay social work student at McGill University who has taken the Quebec Human Rights and Youth Rights Commission to court for dismissing his complaint by incorrectly applying the law on equality and setting a negative precedent on gay rights in Quebec.
The Court dismissed the Commission's attempt to have the case thrown out of court, allowing the case to proceed on the student's application for judicial review of the Commission's decision, which in his opinion, contains serious errors of law and errors of fact.
The case dates back to 2011 when Kofi Norsah, an openly gay man originally from Ghana, did his field placement at a local community organization affiliated with the United Church. He was instructed by his white field supervisor not to reveal his gay identity to his Black female client, who apparently had negative reactions to gay men. The supervisor also made statements that, in Mr. Norsah’s opinion, reflected stereotypes about Black men and Black women. Disagreements over the public affirmation of his sexual identity eventually led to the termination of his placement.
Mr. Norsah then filed a complaint of discrimination based on race and sexual orientation with the Human Rights Commission. The Commission initially refused to accept his complaint since it deemed that “sexual orientation is your private life, and…any regular employer is entitled to ask their staff not to share their private life with their clients.” Surprised by such a position, Mr. Norsah challenged the Commission’s refusal, and eventually his complaint was accepted and investigated.
Three investigators and three years later, the Commission dismissed his complaint in October 2014 for lack of evidence. In its decision, however, the Commission lent support to the supervisor’s position that “based on her experience, disclosing his sexual orientation was not relevant in the context of a professional relationship between a worker and a client, a relationship that must be based first and foremost on the client’s needs.” Another external white supervisor appointed by the School of Social Work supported this view.
Also, the Commission expressly cited in its decision the external supervisor’s evaluation that was negative towards him. The problem, however, is that the evaluation was formally disavowed by the McGill School of Social Work for not being in compliance with standard procedures because it was never shared with Mr. Norsah, as required by the School’s policy, and was submitted significantly past the evaluation period.
Mr. Norsah also identified numerous problems with the Commission’s investigation, including:
Mr. Norsah also criticized the Commission’s failure to apply an intersectional analysis in his case, which courts have ruled to be fundamental to multiple discrimination cases, by treating his race and his sexual orientation separately and inconsistently. Intersectionality is a legal concept to analyze discrimination involving multiple grounds which the Supreme Court and other courts have affirmed since the 1990s.
“The Commission completely ignored the effect that my supervisor’s instruction not to disclose sexual identity had on me as a gay Black man who spent my youth in Ghana hiding my sexual orientation,” said Mr. Norsah. “Furthermore, by compartmentalizing my multiple identities, the Commission imposed on me a hierarchy of identities, forcing me to choose between my sexual identity and my racial identity in terms of disclosure or concealment – a situation that White gay persons do not have to face.”
What Mr. Norsah finds more disturbing about the Commission’s decision is its implicit support for his supervisors’ position--that a helping professional’s sexual orientation is a private matter and secondary to a client’s needs or views. As stated in the McGill Daily last year, the Canadian Association of Social Workers does not yet have a clear policy on the matter, nor does Quebec’s professional order. Even a Commission staff person had suggested to her superior that the Commission adopt a legal opinion on the issue at the early stage of the investigation, which it never did.
According to a McGill Alumni who is active in a network of Gay Black men in Montreal, Rudy Mudenge, Mr. Norsah’s case is seen as a benchmark case for Black and other racialized LGBT persons in and outside Quebec when it comes to contesting the multiple discriminations they face.
“It is clear that the Human Rights Commission does not know how, or does not want to properly treat a complaint of sexual orientation discrimination coming from a Gay Black male immigrant,” Mr. Mudenge said. “This is a very bad decision for LBGT people in general, and for Black and other racialized LGBT persons, in particular.”
“The fact that not once did the Commission’s investigator ask Mr. Norsah why it is important for him as a Gay Black man of Ghanian descent to be out and proud, speaks a lot about the bias, the insensitivity and the incompetency in handling his case, from both race and sexual orientation perspectives,” added Kweku Adomako, an ally of Black LGBT English-Speaking support group in Montreal.
“By improvising on a policy issue without proper analysis and consultation, the Quebec Human Rights Commission has created a dangerous precedent for gay rights in Canada by subjugating a professional’s right to affirm his gay identity at work to a client’s needs, or even homophobic bias,” said Paula Madden, Osgoode Law Student at University of York. “This is an antiquated position that has a profoundly adverse impact on all LGBT staff and students in social work and in all sectors of labor market in general.”
“The issue at this stage is not so much whether Mr. Norsah was exposed to intersectional discrimination in his internship, but rather, whether the Human Rights Commission had properly applied human rights law, by correctly using the effects-based concept of discrimination and the intersectional analysis,” noted CRARR’s Executive Director Fo Niemi.
“It is particularly disturbing to see the Commission’s decision that goes so obviously against principles of racial and LGBT equality and even the Quebec Policy Against Homophobia. Without policy guidelines on systemic racism and intersectionality, which it has resisted to adopt year after year, it’s no wonder the Commission missed the boat on this case, ” Mr. Niemi added.
Mr. Norsah filed for a judicial review of the decision in November, seeking to have the decision reversed and $15,000 in damages against the Commission for gross negligence in investigating his complaint.
The Commission introduced a motion to dismiss the case on the grounds that the Commission has discretionary decision-making authority and immunity from judicial intervention, among others. This morning, the Court disagreed with the Commission and allowed the judicial review to to proceed, although it struck down the financial damage claim against the Commission.
“We are very happy with this decision, because it now allows us to proceed and have the fundamental issues raised by Mr. Norsah thoroughly examined in court,” said lawyer Melissa Arango, who represents Mr. Norsah. “We can now have a full public conversation about how the Commission protects victims of intersectional discrimination like Mr. Norsah, and among other things, about the right of LGBT professionals to affirm their sexual identity at work in a fully equal and free manner.”
The written decision will be available at a later date.
Read Kofi Norsah's reflection: http://www.mcgilldaily.com/2015/01/girlfriend/