In the Human Rights Context, Perception Is Reality

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Guest blogger Robert Smithson, a BC lawyer, is back with an interesting discussion on disability discrimination.

It may seem odd that an employer can discriminate against an employee based on a mental or physical disability when the employee doesn’t actually have a disability.  It is, however, a legal concept which seems to make good sense in practice.

In effect, an employer who deals with an employee as if he or she suffers from a disability is treated, for the purposes of human rights law, as it would be if the employee does have a disability.  Though it may be difficult to imagine why an employer would do that, this isn’t a particularly rare occurrence.

This concept has perhaps arisen most frequently in relation to mandatory drug testing imposed on employees.  Such drug testing policies effectively treat employees as if they are drug dependent (which is a disability) and are likely to attend at work in an impaired state.

The great majority of employees are, of course, not addicted to drugs.  However, by imposition of a mandatory drug testing policy, the employer presumes or perceives them to be addicted.

A recent example of a human rights tribunal decision in which the “perceived disability” doctrine was applied occurred in Ontario.

Jean McLean was an employee of a high technology company called DY 4 Systems Inc.  McLean informed her employer that she had contracted inactive tuberculosis (also called TB infection).  Apparently, inactive tuberculosis isn’t as bad as it might sound as it is an asymptomatic, curable condition.

The employer sent McLean home after hearing about her condition, instructing her not to return until she had obtained a physician’s clearance to do so.  McLean later returned to work but, soon after, her employment was terminated resulting in a complaint pursuant to the Ontario Human Rights Code.

DY 4 acknowledged it thought McLean was suffering from inactive tuberculosis at the time of the termination of her employment.  DY 4’s position was (in part) that McLean “was dismissed because she came in to work thinking that she had tuberculosis, with a reckless disregard for the health and safety of others”.

The twist in this case was that McLean had never actually contracted inactive tuberculosis.  But, as a result of a series of miscommunications and misunderstandings, McLean incorrectly believed that she suffered from the condition.

The fact that McLean never suffered from the condition didn’t serve as a get-out-of-jail-free card for DY 4.  The Ontario Human Rights Tribunal found that “decision-makers at all levels of the respondent corporation were … aware that the applicant might have inactive TB at the time the decision was made to fire” her.

The Tribunal concluded that at least one reason for the employer’s decision to terminate McLean’s employment was its concern that she would need time away from work, during a very busy period, “to deal with disability-related medical needs.”

The good news for McLean was that she never suffered from the condition.  The bad news for DY 4 was that it was found to have breached the Ontario Human Rights Code and was ordered to pay damages.

This result goes to show that, in the human rights context, perception is reality. 

Robert Smithson is a labour and employment lawyer.  For more information about his practice, or to view past “Legal Ease” articles, go to www.pushormitchell.com.   This subject matter is provided for general informational purposes only and is not intended to be relied upon as legal advice.