# 2019-125 Careers, Compulsory Retirement Age, Discrimination, Instruction in the Official Language of one's choice, Official Languages Act

Case summary

F&R Date: 2020-04-07

The grievor alleges that discrimination due to the fact that she is female has inhibited the advancement of her career. She asserts that her career has been limited as a result of the lack of support for post graduate studies, the denial of deployment and tasking opportunities that would have allowed her to gain experience, and the denial of French language training. She explains that the losses of these opportunities have, in part, been the result of her Chain of command overburdening her with administrative duties.

The Committee found that the grievor's sex was not a factor in the decision not to sponsor her Postgraduate studies in mentioned program. The Committee found that the decisions regarding the grievor's French language training were based on training availability and staffing requirements and not on the grievor's sex. The Committee also found that the grievor was not eligible for career opportunity based on CAF policy, not based on her sex. In addition, the grievor was not at the appropriate rank at the relevant time to be considered for the Outside Canada posting, not because of her sex.

Therefore, the Committee found that the grievor has not established a case of prima facie discrimination. Accordingly, there was no need to proceed to an analysis of the employer's reasonable justification or bona fide occupational requirement. The Committee recommended that not to afford the grievor redress.

FA decision summary

The CDS agreed with the Committee's assessment of the matters it had reviewed, but found that the Committee's analysis did not consider an aspect of the grievance. The CDS acknowledged that the grievor's failure to clearly identify a discriminatory act or omission does not necessarily mean discrimination did not occur; systemic discrimination is difficult to detect because it can exist within the foundational framework of CAF management systems.

The CDS found that the grievor was not discriminated against on the basis of gender, but the grievor's career was negatively impacted by the scoring of years of remaining service (YRS) for succession planning purposes. However, the CDS also noted that a special measures list (SML) with up to four seats specifically allocated for female nominees had been created for the career course the grievor wished to take, but that the relevant guidance message had expired and the grievor's military occupation had not used the SML in several years.

The CDS noted that the grievor's military occupation scores its members for succession planning purposes based on their YRS, and that they begin losing points at age 42, despite their ability to serve for a further 18 years. The CDS found that this policy was neither fair to the grievor nor in the interests of the Canadian Armed Forces (CAF), and that if the grievor's YRS had not been applied as a scoring tool she likely would have been placed on the career course. The CDS directed that the grievor be posted to a suitable location to complete one year of second language training, and to be loaded onto a subsequent serial of the career course, regardless of the second language profile the grievor obtains.

Furthermore, the CDS noted that the Chief of Military Personnel (CMP) is currently reviewing the CAF's compulsory retirement age policy. He directed L1 commanders to review how YRS are used within their organizations, and CMP to review YRS policies surrounding language training and SML programs.