Human Rights and Equity Office

Human Rights and Equity Office
Human Rights and Equity Office

Meeting 25: Disability, Stigma, and Employment

This meeting focused on cases related to the stigma and the perception of disability in employment settings.

Guest Speakers

Heidi Penning, Equity Advisor at the Queen’s University Human Rights and Equity Office

Cases

Commission des droits de la personne et des droits de la jeunesse (MP) c. 9208-8467 Québec inc. (Résidence Sainte-Anne)

Commission des droits de la personne et des droits de la jeunesse (MP) c. 9208-8467 Québec inc. (Résidence Sainte-Anne)

Summary

Since 1997, MP suffered from remitting-relapsing multiple sclerosis. This condition manifested itself through episodes of tiredness and numbness of the hands and feet, occurring once or twice per year. The episodes varied in length, and their timing was unpredictable.

In March 2011, MP applied for a job as a care attendant at St. Anne's Residence (la Residence Sainte-Anne), a residential care facility for elderly people. The building housing the care facility was owned by Doris Caron. MP replied negatively when asked whether any medical or physical restrictions would prevent her from carrying out any of the tasks associated with the position, and she did not disclose that she had multiple sclerosis. At the time of the interview, MP was not experiencing any symptoms associated with her condition.

On March 24, 2011, she noticed that her left hand was numb and attended with an emergency neurologist the following day, who signed her off work for three weeks. After Alexandre

Caron, the manager, was made aware of MP's absence, and of the fact that she had multiple sclerosis, he requested a medical statement confirming that MP was able to perform her duties as a care attendant. MP agreed to provide such a statement and returned to work just a few days after the conversation.

MP worked several shifts before her next doctor's appointment. During this time, she performed her job well, and although she was unable to serve hot liquids on account of her condition, this restriction was easily accommodated by the other care attendants. However, at her appointment on April 6, MP was advised not to return to work for a further two weeks.

The next day, MP was summoned to a meeting with the Carons and presented with a note signed by Doris Caron informing MP that she was dismissed with immediate effect as the business could not support her numerous absences from work as a result of her health.
 

Questions to be Determined and Findings

Does MP’s health situation constitute a disability within the meaning of section 10 of the Charter? (YES)

If so, was her disability part of the reasons for which MP was dismissed? (YES)

Did the defendants interfere with MP's right to employment without discrimination based on disability in contravention of sections 10 and 16 of the Charter? (YES)
 

Reasoning

1. The Tribunal has already decided that a condition such as, or similar to, multiple sclerosis constitute a disability within the meaning of Article 10 of the Charter.

2. The letter of dismissal that MP received is explicit as to the reasons that lead the defendants to terminate her employment: her multiple sclerosis. This letter was considered to be sufficient evidence of discrimination against MP. Consequently, the employer bears the burden of justifying his actions.

Mr. Caron and his aunt, Ms. Caron, however, state that the dismissal letter did not reflect the real reasons for the dismissal. In their view, the reasons where that MP allegedly lied during her job interview about her health state, which created an irrecoverable breach in the relationship of trust. On the other hand, Mr. and Ms. Caron argued that an optimal physical state constitutes a bona fide occupational requirement for the job and that accommodating MP would have constituted undue hardship.

Regarding MP lying during the job interview, the Judge stated:

The evidence does not indicate that MP lied during her job interview, or that she gave false answers to the questions she was asked. She did not specify that she had multiple sclerosis because she felt she did not have to do so given questions asked. She said she was fit to do the job, and she was supported by her doctor, who had encouraged her to take the nursing assistant course.

Since she had no medical restrictions, she was justified in not disclosing her illness in the absence of a specific question to that effect.

Mr. Caron further argued that MP’s health condition jeopardized the safety of patients and that he refused to accommodate her for that reason. On the other hand, Ms. Brassard testified to MP’s about her competence and stated that she did her job very well and that her minor limitation was easy to accommodate.

The Tribunal also found that the statements of fitness for work provided by the nurse and the neurologist were in no way contradicted because only Mr. Caron’s claims were not supported by any evidence. The questioning of patient safety is therefore unfounded. The application of the test developed in Meiorin demonstrates that the decision to dismiss MP was not justified.

By section 10 of the Charter, the Commission determined that, upon her dismissal, MP was the victim of a "distinction, exclusion or preference," based on one of the protected grounds. [This decision] had the effect of destroying or compromising the right to full equality in the recognition and exercise of Human Rights. The defendants failed to establish a bona fide occupational requirement or undue hardship. It was possible to provide an accommodation to MP, and they did not meet this obligation.
 

Remedy

The Commission's claimed for compensation equal to one month's salary, namely $ 1,149.72, which was granted.

Concerning moral damages, the evidence showed that MP suffered a great deal from this dismissal. She worked for a while in a clothing store; then her doctor diagnosed depression. After being on medical disability for a year, she returned to work part-time. The Tribunal awarded $ 7,500 in compensation for moral damages and $3,000 in punitive damages.

CW v. Ed Bulley Ventures Ltd. (c.o.b. Woodlands Inn and Suites Hotel)

CW v. Ed Bulley Ventures Ltd. (c.o.b. Woodlands Inn and Suites Hotel)

Summary

Mr. Winkelmeyer testified that he has Cerebral Palsy. He said the disability affects his mobility, his hand-eye coordination and his fine motor skills. He applied for a Room Attendant position at the Woodlands Inn on June 3, 2010, by faxing his résumé to the Employer.

On June 17, 2010, he received a phone call from Annetta Young, the Housekeeping Manager, following up on his application. During that conversation, Mr. Winkelmeyer explained his previous work experience. He stated that he believed that experience would make him an asset in the position he sought, and to that point in the conversation, things went well. He then communicated to Ms. Young that he required the assistance of a cane for mobility. He testified that the tone of the conversation immediately shifted from positive to stiff, and he was asked whether he was physically able to carry out the job because of a certain number of rooms needed to be completed during the day.

Mr. Winkelmeyer then described how he had done similar work at UNBC by finding different ways to cope with the duties, and he offered to attend at the hotel to showcase his abilities. Ms. Young said she had to talk to the Hotel Manager and that she would call him back. Mr. Winkelmeyer then requested her to call him back to his cell phone number rather than his home number because his home phone had no answering machine and he was often not there to answer.

Ms. Young assured him that she would make a note of his cell phone number and contact him on that number within a day or two. He did not receive a callback, nor an email, from Ms. Young at any time. He also noted that the Woodlands Inn. Still had similar positions available online.

Combining the knowledge that there were some jobs at the Woodlands Inn, including the Room Attendant position that he applied for and that he received no callback, he concluded that he was being discriminated against due to his disability. He filed his complaint with the Tribunal on June 22, 2010.

Mr. Winkelmeyer testified that he first felt discriminated against in the June 17th telephone conversation. The change in the tone of the conversation as soon as he mentioned his disability put him on alert and the suspicion was confirmed for him when he did not receive a call back from Ms. Young within several days.

Mr. Winkelmeyer’s Telus cell phone statement for June demonstrates that no incoming phone calls were made from Fort Nelson to that number on June 21, 2010. Mr. Winkelmeyer also testified that there is no record of a phone call to his home phone from the hotel on that date.

On the other hand, Ms. Young testified that she did write down Mr. Winkelmeyer’s cellphone number on his resume. After the phone interview, she spoke to Mr. Moore, her General Manager, and was told to bring Mr. Winkelmeyer in for a face-to-face meeting. On June 21, Ms. Young stated that she called Mr. Winkelmeyer back on his home phone, but he did not answer. She testified that she called his home number a second time, and once again, there was no answer. She neither called the cell phone number nor tried to email him, even though she had his resume with her notes in front of her during both calling attempts.

She also said that the duties of a room attendant involve cleaning mirrors that are very high and need to be reached by stools, and that she had concerns whether Mr. Winkelmeyer could have carried out those tasks. She further testified that she did not intentionally fail to call Mr. Winkelmeyer in for an interview because of his crutch but because she simply got busy.
 

Questions to be Determined and Findings

Has Mr. Winkelmeyer established a prima facie case of discrimination on the basis of physical disability? (YES)

Has the respondent established a defence? (NO)
 

Reasoning

1. The Tribunal applied a credibility analysis on both witnesses and concluded that Mr. Winkelmeyer and Mr. Moore were credible witnesses, while Ms. Young was presented as a sincere witness, her evidence was not inherently believable.

Ms. Young made a note in bold print on Mr. Winkelmeyer’s covering letter during the initial conversation of June 17, 2010, which read:

250-1-961-1563

Works with a crutch

I talked to Conan told him I would call him back

That note is prominently displayed on the top of the covering letter, occupying virtually the top quarter of the right side it. That note referenced only the cell number and lends credibility to Mr. Winkelmeyer’s testimony that he informed Ms. Young, during their conversation, that she should call him back only on his cell number. (p. 56, 57)

To establish a prima facie case, Mr. Winkelmeyer must demonstrate that he was a member of a protected group (in this case defined by physical disability), that he suffered adverse treatment regarding employment, and that it is reasonable to infer from the evidence that his physical disability was a factor in the adverse treatment.

In this case, Mr. Winkelmeyer gave evidence that he has Cerebral Palsy and that it affects his mobility and motor skills; and he was denied an employment interview and therefore an opportunity for summer employment. Further, the Tribunal found that:

Ms. Young’s failure to contact Mr. Winkelmeyer and invite him for an interview was precipitated by her concerns regarding his ability to carry out the duties due to his disability. I conclude that Mr. Winkelmeyer’s disability was at least a factor in his denial of an employment interview. (p. 68, 69)

2. The Employer did not present sufficient evidence to establish a bona fide and reasonable occupational requirement under s. 13 of the Code. The employer’s actions were not justified.
 

Remedy

The denial to Mr. Winkelmeyer of the opportunity to work for the Employer has negatively impacted him emotionally. He was also unemployed from July 20, 2010, until he started school in late August 2011.

The Tribunal awarded Mr. Winkelmeyer $5,000 for damages and $1,706.25 in wage loss.

J.D. v. Sandringham Care Centre and another

J.D. v. Sandringham Care Centre and another/h3>

Summary

Ms. Jessica Davis (J.D.) is a Registered Care Aide (“RCA”). She was employed by Sandringham, a psychogeriatric care facility for over a year as an RCA with no complaints about her work performance. Due to childhood trauma, Jessica Davis (J.D.) has Post-Traumatic Stress Disorder (“PTSD”), and she spent many years in therapy to address her PTSD and to develop coping mechanisms if a situation triggered a re-occurrence. She had shared her diagnosis with Quinn Wolf (Q.W.), also an RCA.

On September 27 and 28, 2012, J.D. took two sick days due to a flare-up of her PTSD symptoms, returning to work on September 30. On September 27, J.D. had a phone conversation with Q.W. about her recent leave. According to Q.W., J.D. told her during this conversation that she "had a monster inside her" and "didn't know how long she could keep it inside her from killing herself." Although acknowledging that she spoke to her co-worker that day, J.D. denied making any remarks of this nature.

Later, Q.W. expressed her concern about J.D. to Debra Kean, the facility executive director, and advised her to “check-in” with J.D to make sure everything was okay. Q.W. denied providing the director, who was not aware of J.D.'s condition, with any details about J.D.'s mental health.

On October 02, J.D. returned to work as resumed her duties as usual, but she was called to a meeting by Ms. Kean ostensibly to give her a pen and card in recognition of her one year of service. However, J.D. claimed that the director then began to repeatedly question her about her recent sick days and ask her how she was "really doing" throughout a two-hour meeting. J.D. began to feel overwhelmingly pressured and disclosed that she had PTSD, that it had caused her to hurt herself in the past, including biting herself or pulling out her hair, but that she did not come to work if she was experiencing symptoms, and was fine after taking time off work. J.D. further claimed that the director strongly urged her to see the staff psychiatrist despite J.D.'s insistence that she had her own doctors and treatment, and that the director repeatedly asked her if she had any other diagnoses, to which she did not respond, and if she had engaged in violent behaviours, to which J.D. responded in the negative.

Feeling extremely upset and humiliated, J.D. accepted the director's offer to take the rest of the day off and texted her husband to come to pick her up. When her husband did not immediately respond, the director continued to insist that someone should take her to the hospital to be assessed. J.D. claimed that she felt that she had no choice but to agree. At the hospital, J.D. was examined by a doctor who determined that her situation was not acute, that she had adequate resources available to her and coping mechanisms in place, and sent her home. After leaving the hospital, J.D. left a voicemail with the director stating that she was very troubled about their meeting and that she was not ready to return to work, to which the director did not respond.

According to the director, however, she had decided to meet with J.D. after receiving anonymous notes regarding concerns about J.D.'s work performance and Q.W.'s suggestion to "check in" with her. The director claimed that J.D.'s body language and withdrawn presence at the meeting indicated that something was wrong and that J.D. told her that "she was okay considering that she came to work compromised." The director claimed that, when she questioned J.D. about being "compromised," J.D. told her that she had "a murderer inside of me," had considered cutting her throat, and had a dissociative personality disorder. She denied that J.D. mentioned anything about having PTSD. The director claimed that she suggested that J.D. go to the hospital as she was concerned that J.D. posed a safety risk to herself or others, and denied forcing J.D. to go to the hospital. Ms. Kean then advised Sandringham's office manager to take J.D. off the call list because she was on medical leave. Neither the director nor Q.W. contacted J.D. after she returned from the hospital to follow up.

On October 8 and 15, J.D. left messages with the director that she was ready to return to work, unaware that she had been placed on medical leave. On October 18, the director met with J.D. and advised her that she was required to provide a "fitness report" from a doctor who had been treating her on a long-term basis stating she was mentally fit to work at Sandringham. Although J.D. questioned the request, she nevertheless agreed and provided a note from her psychiatrist dated November 6, 2012. Although she was ultimately cleared to return to work on November 13, J.D. claimed that she did not feel welcomed and that it was clear that the director did not want her back. She did not return to work at Sandringham.

J.D. alleges that, based on either Ms. Kean’s knowledge or perception of mental disability, she was subjected to an intrusive interview, where she felt compelled to reveal private information about her past, and was thereafter subject to differential treatment based on Ms. Kean’s stereotypical views about J.D.’s mental health.

J.D. filed a complaint alleging that Sandringham Care Centre and Debra Kean discriminated against her in her employment, based on her mental disability or perception of her mental disability, contrary to s. 13 of the Human Rights Code.
 

Questions to be Determined and Findings

Was Mrs. Davis’ mental disability or the Respondents’ perception that she had a mental disability a factor in that adverse treatment? (YES)
 

Reasoning

Credibility was central to the case, in light of the markedly different accounts of the events, the British Columbia Tribunal found J.D. to be a credible witness, and the testimony of Q.W. and the director to be less so, characterizing the director's testimony, in particular, to be "vague," "self-serving," and, at times, "simply not believable." Specifically, The Tribunal did not accept that J.D. had told Q.W. that she had a "monster inside of her," finding it more probable that J.D. said she was stressed and said something about her emotional/psychological state that caused Q.W. concern. The Tribunal also did not accept that Q.W. did not inform the director of J.D.'s mental health issues when she asked the director to "check in" on J.D.

The Tribunal also found that J.D. had not called the director to thank her for her help, that the director had put J.D. on medical leave without her knowledge, that there was no medical evidence supporting this decision, and that the director did not welcome J.D. back to work readily.

The evidence establishes that Ms. Kean perceived J.D to have the mental disability of dissociative personality disorder, and her treatment of J.D. was guided by this misconception. This was incorrect and the evidence respecting J.D. having borderline personality disorder was insufficient.

J.D. had established a prima facie case of discrimination because she had a mental disability, namely PTSD and that she experienced adverse treatment in the form of humiliation being forced to call Q.W. and go to the hospital against her will, being placed on medical leave without her knowledge and losing work as a result, and ultimately losing her job. Finally, the Tribunal held that J.D.'s mental disability, and specifically the director's perception of J.D.'s disability, "was not only a factor but integral to" the adverse treatment:

Because of her stereotypical views about dissociative personality disorder, Ms. Kean determined that Mrs. Davis required immediate treatment and sent her to emergency in the middle of her shift and wearing her scrubs. Ms. Kean directed Mrs. Davis to call Ms. Wolf, even though Mrs. Davis had told her she had contacted her husband and needed to wait for him to call her back. Ms. Wolf immediately came to Sandringham to pick-up Mrs. Davis to take her to emergency. She checked-in with Ms. Kean and drove Mrs. Davis to emergency. She begged Mrs. Davis not to leave the hospital. (p. 305)

Also, the Respondents did not show any evidence of other attempts to approach the situation in a non-intrusive manner.

The Tribunal concluded that the intrusive questioning itself was both discriminatory conduct and an unreasonable approach to ensuring the reasonable safety of Sandringham residents and staff since there were not any performance issues. Therefore, the employer failed in establishing a bona fide occupational requirement and that J.D.'s complaint was justified.
 

Remedy

British Columbia Human Rights Tribunal Member Marlene Tyshynski allowed the complaint, ruling that the director's actions were discriminatory, and awarded J.D. $35,000 in general damages for injury to dignity, plus $784.89 in compensation for lost wages, and $1,539.98 for costs J.D. and her husband incurred to attend the hearing.

TP v. Ontario (Community Safety and Correctional Services)

TP v. Ontario (Community Safety and Correctional Services)

Summary

The Applicant has been employed by the Ontario Provincial Police (the “OPP”) since 1989 in various roles. Just before his departure from the workplace, he worked as a network administrator in the Investigation and Enforcement Bureau of the AGCO, where he was responsible for network and computer systems used by the Bureau.

At the time he was in charge of a big project and was expecting an audit as well. When was working on the refresh of equipment, he had been experiencing the return of medical problems he had occasionally dealt with in the past: problems with digestion, frequent panic attacks and sleeplessness. He says he translated every pain in his chest area as a heart attack and said the pain was intense enough to lose his breath.

On December 22, 2010, when he was close to completing the project, the applicant met with his supervisors. He was already in a bad state that morning as he had not slept the night before and had come into the office early. One of the supervisors testified that the applicant was reassured during that meeting that the audit was not related to his job performance. The applicant says that he, feeling overwhelmed, broke down during that meeting.

On December 30, 2010, he provided a doctor’s note indicating that he needed to be off work for a month. The respondents testified that the medical note did not provide any information relating to the applicant’s limitations or restrictions. Consequently, they requested more information. On January 12, the Applicant’s doctor provided another note stating that the applicant continued to be off work for four weeks.

The doctor also filled out a form sent by the Respondent where she describes the nature of the Applicant’s medical leave. In response to a question about the applicant’s limitations and restrictions and his prognosis for return to work to his position, she answered that he was “limited by decreased concentration, should improve with treatment”, and that no accommodation was available but that the situation could improve if the Applicant’s commute time were shorter.

Following submission of the materials from his doctor, the Applicant had a conversation with Ted Clark, OPP Sargeant, which caused him great upset since Clark told him that he had discussed the applicant’s situation with Fred Bertucca and Laura Young, and that ‘they could not see anything wrong with him.” Additionally, Clark inquired more about the nature and reason behind his medical leave and said that the Applicant’s doctor did not know how to fill out forms.

The Applicant said Ted Clark told him that he could extend his time off to January 31, 2011, but after that would have to cut his pay off. The impact of this conversation on him was devastating. He was extremely concerned about losing his income and had a panic attack while on the phone.

After the troubling phone call, he immediately phoned Laura Young, Human Resources Advisor, who reassures him that his income was not in jeopardy and asked that he get his doctor to fill out the form in a more detailed fashion. She testified that it was the practice of the organization to send out requests for additional information about limitations and restrictions if a person was absent for more than just a few days, so she did not disagree with Ted Clark’s decision to send the forms out for the applicant’s doctor to fill out.

The applicant continued to provide notes and forms from his doctor. In total, Dr. McComb provided six handwritten notes between December 29, 2010, and March 30, 2011. Also, she provided three completed forms between January 12, 2011, and June 12, 2011, at the request of the respondents.

The Applicant said that Clark did not believe he was off work due to an illness and that he heard from friends and colleagues that Ted Clark was making cryptic and disparaging remarks about him when people asked where he was and when he would be returning.

The applicant filed a WDHP complaint in which he alleged that he had experienced harassment. The WDHP complaint was found not to be substantiated in May 2011. The applicant was upset by the results and took issue with the fact that the investigator did not interview key witnesses.

Later on, the Applicant was not reporting to Clark anymore, and his physician had suggested the possibility of him working from a location closer to home. This proposal was denied since, to provide IT assistance to people in the Bureau, the applicant would need to be in the main office location where most employees from the field would come for assistance. By August 10, 2011, his doctor pronounced him unable to return to work at that time and requested psychiatric consultation and follow-up.

The situation with his employer has reached and remained at an impasse, and the applicant also has litigation pending against the insurer that stopped paying his LTIP benefits.
 

Questions to be Determined and Findings

1. Did the Applicant experience harassment when he first went off work? (YES)

2. Did the Applicant experience reprisal? (NO)

3. Did the Respondent meet its duty to accommodate? (YES)
 

Reasoning

1. The Tribunal admitted that employers can request additional information from an employee if necessary. However, Clark’s actions amounted to harassment.

An unnecessary number of letters were sent immediately upon the commencement of the applicant’s leave, with unreasonable deadlines set for compliance not in accordance with the employer’s own policies, including one which threatened to interrupt the applicant’s income source, despite clear documentation that showed he was clearly off work for medical reasons and under a doctor’s care, as well as advice to the contrary from Laura Young. (p. 63)

Clark’s conduct was clearly so concerning to Laura Young, the human resources adviser, that she took the step of consulting with others in the Bureau to ensure that they were made aware of the situation.

The Tribunal also found that the employer bears some responsibility as a result of its failure to take meaningful action despite knowing the situation. Therefore, the respondent employer effectively condoned the conduct that amounted to harassment.

2. The Tribunal was unable to conclude that the actions of the respondent employer or any of the personal respondents amount to reprisal because of lack of credible evidence.

3. Although the Applicant’s doctor suggested that reducing commuting time would improve his health status, the psychiatrist with whom the applicant consulted in October 2011, Dr. Rodway-Norman, opined that he should be able to recover and that when he did, he should return to “an alternative placement.” This report appears to suggest that the issue concerning him was not an inability to travel to the workplace but the damaging effect of the particular work environment on the applicant’s health.

The Judge further stated:

Although the applicant argued that he could do many of the tasks that are essential to his job remotely given the nature of the enterprise, I am satisfied that proximity to the servers and being available for day-to-day interactions in person with the users of the IT system were critical, and it would not have been possible for the applicant to perform those essential tasks relating to his job while working from a location other than the Bureau’s main office. I am satisfied on the evidence that his stated inability to drive or travel safely would have made it impossible for him to conduct the tasks central to the job. (p. 103)

Accordingly, the Tribunal found that the applicant had not established that the respondents discriminated against him on the basis of disability by failing to accommodate him in 2011 when he still contemplated a return to work but requested the ability to do so remotely.
 

Remedy

Tribunal awarded $25,000 in damages for injury to dignity against the OPP, and $2,500 against Clark personally, also ordering Clark to complete an online human rights training module.