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No witnesses, no problem? Analysing systemic discrimination complaints

February 3, 2022

Can you investigate systemic gender discrimination claims without interviewing complainants or witnesses?

While systemic complaints are about practices and procedures, not individual behaviour, we still think interviews are essential – and we’ll soon find out if the Divisional Court agrees.

The case: did an emergency room doctor discriminate against female physicians?

Dr. Marko Duic was chief of his hospital’s emergency department until 2018. That’s when a Globe and Mail expose claimed he had systemically discriminated against female physicians in hiring and training.

But his professional regulator cleared him of wrongdoing, and an appeal board upheld his innocence – without interviewing any complainants or witnesses, only the doctor himself.

Systemic versus direct discrimination complaints

Obviously, direct discrimination can’t be investigated without interviewing the complainant. If a complainant alleges the respondent behaved badly toward them, and the respondent denies it, any proper investigation must hear both sides of the story, directly from the parties.

But systemic discrimination complaints aren’t about one person’s alleged behaviour toward another. They’re about apparently neutral practices and procedures that result in certain groups consistently facing worse outcomes, usually inadvertently.

Systemic discrimination is often detected through statistics and patterns. Even if we can’t identify a single job candidate who was rejected because of her gender, when no women work in an entire department, it suggests systemic barriers likely exist in recruiting female candidates.

The appeal board says statistics are enough …

So was the appeal board correct to clear Dr. Duic of discriminatory hiring and training practices, based solely on a statistical analysis?

The analysis, prepared internally by the hospital where Dr. Duic worked, reviewed data on six years of emergency department physician hiring, job applications, residency assignments, and evaluation and review of medical trainees. It concluded that hiring decisions were made through a formal selection process that included multiple stakeholders (so Dr. Duic couldn’t refuse to hire women even if he wanted to), and the all-male physician team “has not been by design, but rather by the choice of the female applicants who declined direct offers to apply.”

The appeal board concluded:

The … report was based on objective statistics and stated that selection of Associate Staff in the ED is based on a formal selection process that included physicians, nursing and administrative staff and thus confirms that the hiring and selection of ED physicians is done by a group and not by the Respondent. 

The Board also found that given the report, there was no need to interview witnesses. How could information from witnesses possibly change the regulator’s decision in the face of “objective statistics”?

… but we would dig deeper

That last question was tongue-in-cheek. In our opinion, real life systemic discrimination is much subtler and requires a more nuanced analysis.

It is too simple to say, “we have an all-male physician team because women chose not to apply.” To properly investigate systemic discrimination requires digging deeper and asking questions like, why aren’t more women applying? Why did female candidates decline to apply even when given “direct offers to apply”?

The reason might be perfectly innocent and support Dr. Duic’s defence.

But it might instead be that potential candidates had negative experiences under Dr. Duic during training rotations. Or because peers warned them that his department wasn’t a welcoming environment for women. Or because female candidates saw no point in applying since they didn’t think they’d get the job anyway.

Similarly, it is too simple to say, “We have a formal selection process and no single person makes the decisions.”

Is the selection process fair or is it biased, even unintentionally? Are candidates assessed in ways that men are systemically more likely to succeed at (for example, too much emphasis on “fit” can bias the selection toward candidates who are demographically similar to the interviewers)? Even if multiple stakeholders are involved, whose voice carries the most weight? Has the selection process truly resulted in an all-male physician team by coincidence?

Conclusion and takeaways

Although quantitative data is essential in systemic discrimination investigations, so is qualitative information about people’s real-life experiences navigating the system. And you only get that by interviewing them.

The complainants against Dr. Duic are appealing their case to the Divisional Court, and we’ll keep our eyes open for how the court ultimately decides.

For now, our investigation takeaways are:

  • Make sure you’ve fully heard all sides of the story
  • Complainant and witness interviews play an important role in any investigation, even one that primarily relies on quantitative data
  • Systemic discrimination complaints are subtle and complex, and investigators should ensure they have the necessary experience to approach them in a nuanced way