A British Columbia employer must pay more than $67,000 for discrimination after it fired a worker who revealed that he had Hepatitis C, the BC Human Rights Tribunal has ruled.
“Employers need to be careful, because if an employee’s got a medical condition like this one did, and it constitutes a physical disability or something else protected under the Human Rights Code, then that’s most likely going to lead to cases of discrimination,” says Ryan Macklon, a lawyer with Kent Employment Law in Vancouver.
The worker was a general labourer for Path General Contractors, a general contractor focusing on commercial renovations in Langley BC. He was hired on a full-time basis on Sept. 18, 2018.
Two weeks into his employment, on Oct. 2, the worker injured himself at work. He sought medical treatment from Path’s construction safety officer for the job site. As the construction safety officer treated his injury, the worker told him that he had Hepatitis C.
The construction safety officer treated the worker and then ran across the job site to the site supervisor and yelled “Did you know [the worker] has hepatitis?” He then said that the worker was gone. Other employees at the site could hear what the safety officer was saying.
Hepatitis C can take a while to show symptoms, but it can get serious enough where people can no longer work, says an expert.
Fired by text
The next morning, the worker went to the job site. However, he received a text message from Path’s owner saying that he was fired because he did not disclose his Hepatitis C diagnosis.
Another Path employee reported that after the worker was fired, he saw the site supervisor telling people that they “got rid of” the worker because of his Hepatitis C.
According to the worker, he overheard other employees making derogatory comments and expressing disgust about Hepatitis C. He felt that he was unworthy of integrating into society and his feelings of self-work plummeted.
On April 1, 2020, the worker filed a human rights complaint alleging that Path discriminated against him on the basis of physical disability by terminating his employment because he informed them that he had Hepatitis C.
The tribunal noted that the worker had to prove the three elements to establish discrimination – that he had or was perceived to have a disability; he suffered an adverse impact; and his disability was a factor in the adverse impact.
An Ontario worker who contracted Hepatitis C during surgery for work-related injuries was granted total disability benefits by a tribunal.
The tribunal found that Hepatitis C is a liver infection that can cause health issues over a long time. The worker’s evidence was that the infection caused fluctuations in blood sugar levels, lethargy, and increased risk of seizures. This was sufficient to show that the worker’s infection caused “a chronic physiological state that is involuntary and negatively effects is day-to-day life,” said the tribunal in agreeing that Hepatitis C was a physical disability warranting protection under the BC Human Rights Code.
There was also no doubt that the worker suffered an adverse impact by being fired, said the tribunal, leaving the issue of discrimination coming down to whether the worker’s Hepatitis C was a factor in the decision to terminate the worker’s employment.
The fact that the construction safety officer immediately ran across the job site and yelled that the worker had the infection and that he wanted the worker gone set the table, and the quick timing of the text message the following morning led to the inference that the worker’s condition was the reason for the firing. The owner told the worker that he was fired because he did not disclose the condition, but the evidence supported a finding that the worker was fired because of his Hepatitis C diagnosis and it was “likely the sole factor in the decision to terminate his employment,” the tribunal said.
In this case, [the connection] was obvious – the day after the incident, the employer texted the employee and told him he was being dismissed for failing to disclose that he had hepatitis C, so the tribunal saw the clear link there,” says Macklon.
Macklon points out that, generally, employees are responsible for the actions of their employees.
“Assuming that the construction safety officer is also an employee of the employer, then the employer is going to be responsible for the construction safety officer’s actions, to the extent that the construction safety officer’s actions constitute discrimination,” says Macklon.
An employer must pay more than $58,000 for discrimination for its inattentiveness to a worker’s disability, the Alberta Human Rights Tribunal ruled.
Uncertainty in likelihood of staying
The tribunal found that, if not for the discrimination, the worker would have continued to work as a general labourer for Path. However, given that he had only been an employee for two weeks, there was some uncertainty about how long the worker would have remained an employee – particularly since Path’s work culture “was one with little respect or support and an environment of toxic masculinity” that the worker might have found a poor fit, the tribunal said in finding a contingency deduction of about 10 per cent for the worker’s claim was appropriate.
“The tribunal decided, ‘We can accept that the employee probably would have stayed there for another year, but there’s this possibility that his employment could have ended before then for non-discriminatory reasons,” says Macklon. “It left open this possibility that the [worker] may not have worked a full year there, he could have left earlier if he found that this is not going to work out – the tribunal has the discretion then to say, on that basis, we’re going to apply this contingency deduction.”
The tribunal also found that the worker losing his job – recognized as “an essential aspect of a person’s identity, self-worth, and emotional well-being – because of discrimination was serious, and Path compounded the discrimination by humiliating the worker when the safety officer yelled for others to hear and the supervisor shared details of the disability with others. This reaction invoked “negative stereotypes and stigma” about Hepatitis C and “struck at the core” of the worker’s self-worth, said the tribunal.
In addition, the tribunal noted that Hepatitis C is a stigmatized disease and the worker was particularly vulnerable to negative reactions to his infection. This affected his emotional well-being and his perception that his disease was a burden, said the tribunal.
“The damages are meant to compensate the employee for injury to dignity, feelings and self-worth,” says Macklon. “What the employee showed here and what the tribunal found, is there was a huge negative impact on the employee’s self-worth.”
A Bell Canada employee fired during restructuring was awarded $120,000 for disability discrimination by a human rights tribunal.
Injury to dignity
Path was ordered to pay the worker $48,672 in lost wages – 26 weeks from his dismissal to when he found new employment in April 2019, minus the 10-per-cent contingency deduction – and $18,500 as compensation for injury to the worker’s dignity, feelings, and self-respect stemming from the discrimination.
Firing the worker over text was not relevant to proving whether or not discrimination happened, but It was a factor in determining the size of the award as the tribunal noted that it was “callous,” says Macklon.
“Don’t fire your employees over text message for disclosing medical information, or simply don’t fire employees after disclosing medical information,” he says.
May 29, 2023