Ontario company pays big for treatment of employee with bipolar disorder

In the past few posts, I have spent time discussing the concept of reasonable accommodation in the workplace.  I have also stressed that legal decision makers are taking an increasingly aggressive approach with employers who fail to live up to their duty to accommodate.  As if on cue, a decision was just released by the Ontario Human Rights Tribunal that spells out, in very strong financial terms, what is at stake if employers ignore their obligations under the law of accommodation. 

In Lane v. ADGA Group Consultants Inc., Paul Lane, a Quality Assurance Analyst, complained that ADGA Group, a company involved in various aspects of information technology design and engineering, primarily under contract with the Government of Canada, discriminated against him on the ground of disability.  Mr. Lane was dismissed by ADGA eight days after he started working for them.  He alleged that the company dismissed him because he disclosed his bipolar disorder and that ADGA failed to accommodate his disability to the point of undue hardship.  For its part, ADGA contended that it did not discriminate against Mr. Lane.  Instead, it said that Mr. Lane was fired for being unable to perform the essential functions of the job for which he was hired.  When it was all said and done, the adjudicator ordered ADGA to pay over $79,000 to Mr. Lane for how they treated him.

The Facts

Prior to applying for the job at ADGA, Mr. Lane became aware that he had bipolar disorder and he experienced its potential impact on his ability to function in the workplace (in two previous jobs he held).  Unfortunately, he had also experienced being terminated for reasons associated with his disability.  Mr. Lane interviewed for the position of Senior Test Analyst with ADGA in September 2001.  At no time during the interview or prior to being hired by ADGA did Mr. Lane indicate he had bipolar disorder.  He felt that if he did mention his disability that he would not be hired.  During his interview, Mr. Lane was advised that the position for which he applied could be stressful.  He indicated that this would not be a problem for him.  After being offered the position, Mr. Lane signed a contract which contained a provision stating that ADGA could terminate his employment at will and without notice at any time during the first 90 days.

Four days after he started work, though, Mr. Lane made the decision to speak to his supervisor, Ms. Corbett, about his condition.  He explained what bipolar disorder was and offered to provide her with further material.  In addition, he alerted her to his prior workplace history and what had been a trigger of his condition in the past; in particular, stressful situations involving co-workers.  He informed her that she should contact his wife or his doctor if he exhibited behaviour that suggested he might be moving towards a manic episode.  He also indicated that he might need to take time off work to prevent a deterioration in his condition.

Subsequent to their discussion, Ms. Corbett contacted the Ontario Human Rights Commission informally for advice and did some Internet research to learn more about bipolar disorder.  A few days later, she met with Mr. Lane again and advised him that her manager needed to become involved.  During this meeting, Ms. Corbett felt that Mr. Lane began exhibiting some of the behaviours he had previously warned her might be a sign of his bipolar disorder asserting itself.  Ms. Corbett subsequently received reports from other staff regarding Mr. Lane's behaviour which suggested further signs that Mr. Lane was suffering symptoms of his bipolar disorder.

Ms. Corbett spoke with her manager, Mr. Germain.  Although she sent Mr. Germain the information about bipolar disorder she had obtained from her Internet search, he did not read it.  Their conversation focused on whether Mr. Lane's condition and behaviour to that point were compatible with the job for which he was hired.  Mr. Germain's view was that Mr. Lane was unable to do the job and they should proceed to fire him as they were within the first 90 days of his contract.  A meeting with Mr. Lane was convened and he was fired.  At no time after the firing did anyone from ADGA contact Mr. Lane's wife to let her know he had been exhibiting some of the signs of the onset of a manic episode.

After being dismissed, Mr. Lane went into a full-blown manic episode and he was ultimately hospitalized.  Mr. Lane's life went into a downward spiral after that point.  He became severely depressed, was unable to seek work, had to sell the family house due to his financial circumstances and his marriage broke up. He actually did not find further full-time work until 2006, almost 5 years after ADGA fired him.

Decision of the Ontario Human Rights Tribunal

The tribunal concluded that Mr. Lane had been fired as a result of his disability and the perceptions as to the impact of his disability on the workplace.  The adjudicator rejected ADGA's argument that it terminated Mr. Lane simply for failing to live up to the essential requirements of his job during his 90 day probationary period.  A further argument by ADGA that it had the right to fire Mr. Lane once it found out he had failed to reveal his disability during the hiring process was also rejected.  On this point, the adjudicator pointed to expert evidence adduced at the hearing which detailed that persons with bipolar disorder are very reluctant to reveal their conditions to prospective employers due to the stigmatization of mental illness in the workplace and society in general.

The tribunal then went on to consider the issue of whether ADGA had established that it could not have accommodated Mr. Lane's needs without undue hardship.  It is here where the adjudicator unleashed his criticism of ADGA, pointing out the following:

Procedural component of the duty to accommodate:

• ADGA had no accommodation policy establishing processes for and standards of assessment for persons with disabilities;
• none of the management involved in the decision to terminate Mr. Lane had any training in dealing with workplace accommodation issues, generally, or in dealing with employees with mental illnesses, specifically;
• none of the managers who made the actual decision to terminate Mr. Lane took any steps to assess whether ADGA could accommodate Mr. Lane's disability.  In fact, the adjudicator pointed out that the key managers who decided to terminate Mr. Lane were completely ignorant of their legal obligations when dealing with a disabled employee.  Given that Mr. Lane had specifically revealed his disability to Ms. Corbett and suggested ways he could be accommodated, the adjudicator was astonished that management had seemingly not contacted its human resource department or legal counsel to determine what it should do to carefully manage the situation.  Instead, the ADGA manager principally responsible for the termination believed that the information Ms. Corbett had relayed to him about Mr. Lane's bipolar disorder was irrelevant.  He based his determination to dismiss Mr. Lane solely on his personal assessment of whether Mr. Lane was capable of performing the job for which he was hired;
• even though ADGA had legitimate concerns about Mr Lane's behaviour in the workplace, there was nothing preventing the company from sending Mr. Lane home with a view to seeking medical intervention and nothing preventing the company from postponing any decision on his future until they could fully evaluate whether he could be accommodated without undue hardship;
• the adjudicator stated very clearly that the failure of employers to meet the procedural dimensions of the duty to accommodate is a form of discrimination in its own right and when that failure has its own adverse consequences, a complainant has an independent right to a remedy.  In this case, the adjudicator focused on the serious consequences to Mr. Lane's health of ADGA's move to terminate him without so much as a thought about the obligation to accommodate;

Substantive component of the duty to accommodate:

• as evidence that it could not accommodate Mr. Lane without incurring undue hardship, ADGA offered the testimony of the two key managers involved in the dismissal decision -- basically, they testified at the hearing that keeping Mr. Lane on as an employee would have caused them undue hardship.  The adjudicator found this completely self-serving and totally inadequate to prove accommodation was impossible under the circumstances.

THE ORDER:

The adjudicator ultimately found that ADGA had treated Mr. Lane in a summary and callous way, exacerbated by management's lack of awareness of the difficulties faced by persons with mental disabilities and its legal obligations under human rights law (in this regard, the adjudicator found it particularly concerning that ADGA failed to contact Mr. Lane's wife after he was fired to let her know what had happened and that he appeared to be exhibiting signs of bipolar disorder).  Noting that ADGA was a "sophisticated employer" that "should have known better", the adjudicator ordered that ADGA pay to Mr. Lane the following damages:

• $35,000 in general damages for injury to his dignity and self-worth;
• $10,000 for reckless infliction of mental anguish;
• $34,278.75 for loss of salary;
• pre- and post-judgment interest on the above sums (which, by the way, will take the total damage award well beyond the $79,000 figure).

In addition to the above, ADGA was ordered to establish a comprehensive written anti-discrimination policy and to retain, at its own expense, a qualified consultant to provide training to ADGA's workplace on its obligations under the Ontario Human Rights Code.

What to take from this case:

Learn from ADGA's harsh lesson.  Keep in mind the following:

1. The duty to accommodate applies as equally to probationary employees as it does to long-term employees;
2. If you suspect, or are aware, that an employee has a disability, do not take steps to terminate the employee's employment without consulting a lawyer first;
3. Never proceed to deal with a disabled employee on the basis of presumptions about their disability -- educate yourself. Speak to the employee directly to gain an understanding of her disability, how it may impact her in the workplace and steps that can be taken to accommodate her.  Consult with appropriate medical and other experts, with consent as necessary, in order to learn how to address the particular employee's needs;
4. Establish a clear policy and protocols for addressing issues of accommodation in the workplace relating to disability.  And, once that is done, make sure you follow them.  Remember that you can be found liable under human rights law for simply failing to have a process in place to fully assess accommodation;
5. Educate the entire workplace (including new hires) about your accommodation policy and procedures;
6. Don't even bother making a claim that you cannot accommodate an employee because it would amount to undue hardship unless you are prepared to back that up with actual evidence (expert evidence here is key).

Comments

[Linda]

Hello,

Interesting I happened to stumble upon this site. I would like to convey I had my share of sexual harrassment, discrimination based on my ethnic background which was never resolved. The worst case scenario unfolded because I had made my objections to the manners in which I was treated, which I understand remains a topic of discussion. I was not given due diligence by the Human Rights Commission, where when I had a lawyer lined up, I entrusted in a MHRC worker not to pursue with a lawyer. Who was the complaint against? It was a volunteer Executive Member of a Royal Canadian Legion, who in the end, when I came forward with concerns, had personally fired me for this. This occurred in 2004. Since then I understand Dominion Command had altered their employment policy to ensure every member interested in volunteer work or employment was to go through a screening process. I had considered at one point to become a Legion Member, however, given the treatment I encountered, this will never be a consideration. I had even so far as written the Queen of England to receive her thoughts on the affair. This was to no avail. I would love to hear your opinion in light of the fiasco involving ill treatment of staff with the MHRC.

[Donna Seale]

Hello Linda. Thank you for taking the time to review my weblog and making your comment. I'm sorry you do not feel that your experience with the Manitoba Human Rights Comission was a positive one. Unfortunately, I am not able to comment on the specifics of your case.

[Dr. Arturo Ovies]

The great composer does not set to work because he is inspired, but becomes inspired because he is working. The likes of Beethoven, Bach, and Mozart settled down day after day to the job at hand with as much regularity as an accountant settles down each day to his figures. They didn't want time waiting for inspiration

[Stanley Jonathan]

That was very fair

[Judy]

Referring back to Mr. Lane's case..... if he had been asked fhe following question during his interview, (did he have any medical condition that could affect his attendance or prevent him from performing the duties of the job, or if there was any medical condition that would be hazardous to the safety of his co-workers, customers or the public) but failed to disclose the information of his condition to the interviewer, then why couldn't he be held liable for falsifying his employment application or failing to provide the correct information?

[Donna Seale]

Hi Judy. Thanks for your question. Your question assumes that it would be legally appropriate for an employer to actually ask the types of questions you suggest during a job interview. My view would be that, as you have set those questions out, an employer would have trouble proving that they were appropriate pre-employment inquiries under human rights legislation as they could unfairly screen out persons with disabilities. The questions you set out are very broad and designed to "get at" whether a person has a disability, which is always problematic for an employer. Instead, if you asked questions about specific physical or mental abilities that a job requires and which an employer could prove are bona fide requirements for the job, you would be on better footing. It would be a far better approach for an employer to focus on asking questions that permit a determination of the applicant's qualifications or ability to perform the essential duties of the job with or without accommodation rather than the types of questions you've suggested. It's also important to recognize that there is no legal obligation on the part of a job applicant (or an employee for that matter) to disclose they have a particular disability. And, when we're talking about mental disability, as in Mr. Lane's case, a person could fully believe that they would never come into conflict with any of the things you raised in your questions (due to, for example, being on a medication that is working well for them at the time) and then suffer a relapse of some sort. Would you then say the person falsified information during the interview? You have to be very careful here.

If an employer ought not to be asking the types of very general questions during an interview that you have proposed(as is my view), I do not think that a potential employee could be faulted for answering them in a way that allowed them to keep private their mental disability, particularly one associated with such misunderstanding and stigma as bipolar disorder.

In Mr. Lane's specific situation, I would think he could have actually answered at least 2 out of 3 of your proposed questions truthfully by saying "no". He believed that he could perform the duties of the job he was applying for and I do not think there was any suggestion in the facts of the case that his disability was a safety hazard to those he worked with, customers or the public. He might have even believed he could answer the attendance question in the negative if he felt he could keep his disability in check. So, the long answer to what I think your real question here is that if the employer had asked the questions you suggest during their interview of Mr. Lane I do not actually see the Tribunal coming to any different a conclusion.