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Stereotypical Views of Mental Illness Lead to Hefty Remedy Award
October 28, 2015
Author(s): Brad N. Cocke

In a recent decision of the BC Human Rights Tribunal, a Registered Care Aide filed a complaint against her employer and her supervisor (the “Respondents”) alleging that she had been discriminated against based on her mental disability or a perception that she had a mental disability. The complainant suffered from Post-Traumatic Stress Disorder due to childhood trauma. She had participated in extensive treatment and was managing her symptoms. A co-worker who knew of her history told the employer she was worried about her and that the supervisor should “check-up” on her. The supervisor met with the complainant and asked intrusive questions about the complainant’s mental health history. The supervisor directed the complainant to attend the emergency department despite the complainant’s insistence that she was not in need of medical treatment at that time. Following this episode, the employer unilaterally placed the complainant on medical leave and required her to provide evidence that she was fit to return to work.

The Tribunal found that there was no medical evidence supporting the employer’s decision to place the complainant on medical leave. Ultimately, the complainant was held out of work for a six-week period and was forced to seek alternative employment, eventually moving back to her country of birth, the United States.

Addressing the question of whether the Respondents had met the test for establishing a bona fide occupational requirement, the Tribunal found that the Respondents’ approach was rationally connected to the requirement that RCA’s function in a manner that ensures the safety of those around them, and that this standard had been adopted in good faith. However, the Tribunal found that the Respondents did not establish that their actions were “reasonably necessary” in the circumstances including that they had accommodated the complainant to the point of undue hardship.

The Respondents argued that it would have amounted to undue hardship to allow the complainant to continue to work because they believed she posed a safety risk to herself and others. The Tribunal found there was no evidentiary foundation for concluding that the complainant posed a safety risk and their belief was not reasonable. Rather, the Respondents based their conclusion on stereotypical assumptions about mental health. Further, the Tribunal criticized the employer for subjecting the complainant to an interrogation about her past and present mental health issues in all aspects of her life which resulted in the Complainant disclosing information about her past the Employer would not otherwise have been entitled. Such intrusive questioning was not reasonably necessary in the circumstances. The Tribunal noted that while the connection between a disability and work performance is a proper consideration for employers, there was no evidence in this case that the Complainant had job performance issues related to a disability. The Tribunal upheld the complaint of discrimination.

Important for employers is the Tribunal’s injury to dignity award. The Tribunal found that the Respondents’ conduct had an “extremely” destructive impact on the complainant’s self-confidence and employment, and awarded the complainant $35,000, equalling the highest award to date. This decision is a reminder for employers that issues of mental health in the workplace must be fully investigated, with responses tailored to the available medical evidence. Further, employers must ensure their response is based on facts and evidence about the particular mental illness at issue, not a perceived mental illness, and must avoid applying stereotypical views of what a particular mental illness means for an employee’s continued employment.

Davis v Sandringham Care Centre

Questions relating to the content of the article may be directed to Lindsie Thomson.