The Accommodation of
Employees with a Bi-polar Disorder
January 24, 2008
Can an employer be held accountable for discrimination, even if it can establish, after the fact, that it had been justified in summarily dismissing an employee with a bipolar condition for security reasons?
Case:
Lane v. ADGA Group Consultants Inc., 2007 -10-16 HRTO 34
(CanLII)
Parties
Complainant: Paul Lane
Respondent: ADGA Group Consultants Inc.
Judicial body: Ontario Human Rights Tribunal
Procedural History
The hearings took place over 14 days (from June 2005 to January 2007).
Facts
On Oct. 22, Mr. Paul Lane began working as a probationary employee for ADGA Group Consultants Inc, an IT company working primarily for the Department of National Defense. He was hired to provide leadership for a group of quality control analysts testing artillery software for the Royal Canadian Armed Forces.
On Oct 26, Lane informed his supervisor, Ms. Corbett, that he had a bipolar I disorder. After describing the condition, its indicators and triggers, he explained that in the past workplace harassment had triggered him into a manic phase requiring hospitalization. He then asked Ms. Corbett to monitor him for "strange behaviours" and, if appropriate, to intervene immediately so that he could get the help he needed. This way, he claimed, he could avoid long periods of absence from the workplace.
After the disclosure, Ms. Corbett consulted the Mayo Clinic website for information about bipolar disorders (where she learned that stress was a trigger for bipolar) and contacted the Ontario Human Rights Commission, who advised her that in some cases bipolar disorder could be considered a cause for dismissal. In the meantime, she and other persons at ADGA presented concerns about Mr. Lane's behavior; he was disinterested in his work, he was socializing excessively with coworkers, he had used inappropriate language in an email to a superior (Mr. Germain) and was having paranoid reactions to coworkers.
On the morning of Oct 31, Corbett went to her supervisor, Mr. Germain, with information about bipolar disorder, her observations about his strange behavior, and her concerns about Mr. Lane's ability to handle stress, the reliability of his work, security considerations and the potential logistical problems if he had to take extended periods off work.
A few hours later, Mr. Germain called Lane into his office that afternoon, told him that he was unsuitable for the job, and fired him.
Devastated, Mr. Lane went free fall into a full blown manic state requiring hospitalization. From the time of his release to the time of the hearing, Lane experienced periods of deep depression that prevented him from looking for or finding work. This exacerbated his condition, caused great stress within the marriage and lead to financial ruin; the Lanes were forced to sell their house. In Aug 2002 Lane was forcibly hospitalized and his doctor doubts that he will ever recover sufficiently to work full-time again.
Analysis
Did ADGO dismiss Lane because he had disability?
Yes.
The Tribunal found that Lane was suitable for the job and able to fulfill all the requirements (with the exception, perhaps, of his leadership skills) as long as his bipolar was under control. It ruled that he "was dismissed because of his disability and perceptions as to the impact of that disability on workplace performance" (para 137).
Lane failed to tell ADGA about his disability during the hiring process. Is this lie by omission grounds of dismissal?
No.
Given the employer's swift negative action against the employee after he disclosed his disability and began manifesting signs of mania, it is logical to assume that Lane would not have even been hired had he disclosed the condition during the hiring process. Expert witnesses testified that most people with bipolar disorder are reluctant to disclose their disability to potential employers for fear of being discriminated against.
Did ADGA have the right to fire Lane based on his self-proclaimed inability to handle pressure?
No.
The Tribunal found that Lane had specified that the kind of stress that triggered a manic response in him was induced by workplace harassment. The employer was wrong to extrapolate this explanation to include all kinds of stress associated with Lane's job at ADGA.
Was Lane capable of performing the duties associated with this job?
Yes.
The Tribunal found that when Lane was stable, that is to say not heading towards full-blown mania or deep depression, he was capable of fulfilling the job requirements of his job, with the exception, maybe, of certain required leadership qualities.
Did the employee discharge his responsibility in the duty to accommodate?
Yes
Mr Lane discharged his responsibility by disclosing his disability and requesting accommodation.
Did the employer fulfill its duty to accommodate Lane?
No.
Although Ms. Corbett made a preliminary attempt to educate herself about the disorder, her supervisor, Mr. Germain, did not even take the issue of accommodation into consideration because, according to him, neither he nor Ms. Corbett had expertise in bipolar disorder. He fired Mr. Lane without seeking expert medical, legal or administrative advice or taking the initiative to find alternate work. For example, when he informed human resources about the ensuing termination, he did not request a search for other jobs within the company nor did he request information about the company's policy on managing disability and accommodation issues.
Did Lane's supervisors have just cause to be alarmed by Lane's behaviour?
Yes
Within eight days of his employment, Lane's strange behaviours became the object of legitimate concern, especially in a workplace where issues of national security were at the forefront.
If yes, why was it wrong to fire him summarily?
The Tribunal cautioned that it is often necessary and beneficial to fire unfit employees summarily, especially when such employees pose a security risk. However, in this case, it was not enough, because the unsuitability of the employee was based on his disability. It is unlawful to dismiss a person with a disability without first fulfilling one's legal obligation to accommodate his needs.
What should ADGA have done to meet the procedural dimensions of its duty to accommodate?
In this case, the employer should have taken the following steps before making any decision about termination:
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"Evaluate the concerns on the basis of an appropriate assessment of Mr. Lane's situation and not just the information that Ms. Corbett and Mr. Germain had at that point"
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"[...] Engage in a fuller exploration of the nature of bipolar disorder, Mr. Lane's own situation as a victim of bipolar disorder
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Form a better informed prognosis of the likely impact of his condition in the workplace.
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Given their ignorance of the legal dimensions of the issue, [consult] with a lawyer
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Given the security concerns, contact [...] appropriate personnel in DND
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Send Lane home immediately with a view to seeking medical intervention
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Postpone any decision on his future with ADGA until such time as those responsible could fully evaluate whether ADGA could accommodate Mr. Lane without "undue hardship".
Does the failure to accommodate constitute discrimination if the respondent can prove, after the fact, that it had been justified in firing the employee?
Yes.
The tribunal said that the failure to meet the procedural dimensions of the duty to accommodate discriminates in so much as it "denies the affect person the benefit of what the law requires: a recognition of the obligation not to discriminate and to act in such a way as to ensure that discrimination does not take place. That does not mean that an employer is necessarily precluded from adducing ex post fact justifications of a failure to accommodate based on what a proper assessment of the situation at the time would have revealed. However, when the failure to conduct an appropriate assessment has its own adverse consequences, there exists discrimination for which the Complainant has an independent right to a remedy.
Did ADGA justify, ex post facto, its failure to accommodate Mr. Lane
The Respondent argued that the workplace strategies suggested by Mr Lane to Ms Corbett (monitoring and intervention) were not feasible.
It relied solely on the opinions of persons names as personal respondents, individuals who had self-serving motives. It failed to provide and "independent or expert testimony as to the realities of a company in its position trying to accommodate a person with Bipolar I Disorder". Their argument that Ms. Corbett simply did not have the time to monitor Mr. Lane did not hold up in light of the testimony provided by the complainant's expert witnesses re. "workplaces strategies for managing the disorder and avoiding prolonged absences.
Did the failure to meet the procedural dimensions of the duty to accommodate have adverse consequences on Mr. Lane?
Yes.
Mr. Lane, who was slipping into a pre-manic state at the time of his dismissal, was fired almost immediately after disclosing his disability and requesting accommodation. Almost immediately, he slipped into full-blown mania. Expert witnesses testified that this reaction, under these conditions, was a totally foreseeable consequence of being fired."(151) This precipitate reaction, which "reject[ed] out of hand and without any form of proper evaluation, any possibility of responding to Mr. Lane's situation and his requests without undue hardship" was in and of itself "a species of discrimination and it had serious consequences for Mr. Lane's health"(151)
The October 2007 Orders
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The Respondent shall pay damages to the Complainant for violation of his inherent right to be free from discrimination in the sum of $35,000.
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The Respondent shall pay damages to the Complainant for the reckless infliction of mental anguish in the sum of $10,00.
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The Respondent shall pay the Complainant special damages of $34,278.75 for the loss of salary that resulted from the violation of his rights.
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The Respondent shall pay the Complainant pre-judgment interest on all the above sums from the date on which the Complainant filed his Complaint with the Commission, the interest to be calculated by reference to the rates set for each of the relevant quarters.
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The Respondent shall pay the Complainant post-judgment interest on any accumulated principal and prejudgment interest from the date that is thirty days after the date of this Order, at the rate set for the quarter in which the accumulated principal and interest remains outstanding.
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The Respondent shall retain at its own expense a qualified consultant (approved by the Commission) to provide training to all employees, supervisors, and managers on the obligation of employers under the Code and, in particular, the accommodation of persons with disabilities with a special focus on mental health issues.
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The Respondent shall within three months of this Order establish a comprehensive written antidiscrimination policy that conforms with the requirements of the Code, and that addresses discrimination on the ground of disability.
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The Respondent shall post the policy ordered under (7) in plain and obvious locations at all places where the Respondent does business and will include the policy in the orientation materials that it provides to new employees.
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The Respondent shall also provide copies of the policy ordered under (7) as part of any request for proposal.
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The Tribunal will remain seized of this matter for twelve months from the date (whichever is later) of this order or any further Order it makes to deal with issues that may arise over the implementation of this and any subsequent Order.
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