|Editorial Obiter: Glenn Kauth|
But Wongene Daniel Kim, arguing he was too shy to enter the classroom due to the gender ratio, wanted accommodation that would allow him not to attend the class without suffering the loss of his 15-per-cent participation mark. The professor refused his request. He didn’t attend anyway but completed the assignments. His grades weren’t high enough, however, for him to pass the course. He then took the university to the Human Rights Tribunal of Ontario over an alleged failure to accommodate based on gender.
In a ruling on Jan. 17, HRTO adjudicator Mary Truemner dismissed Kim’s claim. “The applicant stated that he did not want to interact with the other students because they are women, and thought that they would not be willing to interact with him because of his gender,” wrote Truemner in Kim v. Governing Council of the University of Toronto.
“This is merely speculation, as he never gave the class, or the women, a chance. The applicant has no evidence to establish that he has been excluded, disadvantaged or treated unequally on the basis of the grounds claimed, nor does he have any evidence that he would have been, had he attended class.”
It’s a reasonable decision given the very questionable nature of Kim’s claim. It’s a case, in fact, that has some similarities to the recent controversy over a York University student’s request for religious accommodation allowing him not to interact with female students in class. In that case, the university found in favour of accommodating the student while the professor resisted the request. Ultimately, the student relented and participated in the class, but the case sparked a vigorous debate about an alleged overreach of human rights rules and accommodation versus the need to uphold gender equality and secular values.
While York University has come under much criticism, it’s not clear that its decision to accommodate was entirely unreasonable. We don’t know the details on the student’s religious beliefs, and it’s possible the university made its decision in part based on the possibility of a legal case such as Kim’s and the likelihood of just as much criticism had the student chosen to make a public issue out of a refusal to accommodate. But as Kim shows, the HRTO can — although it doesn’t always — make good decisions on these types of matters and universities such as York and U of T can trust it to balance the appropriate factors. U of T was right to let the legal process run its course to get a better sense of what the expectations around accommodation might be.