It has been reported (read the Toronto Star’s story here), that Starbucks has recently dismissed one of its employees on the basis that her step stool accommodation was a danger to others. The human rights issue in this case is that the employee has a medical condition known as dwarfism (the employee is a “little person,” as many people with dwarfism prefer to be known). The store manager’s conclusion that the employee could not continue in her position was based, in part, on the fact that the employee is a little person and requires the use of a step stool in order to perform her job. Starbucks’ position is that the stool poses a danger to customers and other employees, presumably as a tripping hazard. Starbucks also seems to be relying on the fact that the employee was probationary and had only been on the job for 3 days.
This situation raises two interesting issues that have been addressed to different degrees in the jurisprudence of the Human Rights Tribunal of Ontario.
The first issue is whether the duty to accommodate a disabled employee can be limited by safety concerns. The short answer is yes, but the safety concerns must be bona fide and there must have been a serious investigation into possible alternative accommodation measures before safety concerns can be used as a valid reason to not accommodate a disabled employee. Health and safety concerns are one of the three factors that a Tribunal can look at in determining whether accommodating a person with a disability amounts to an undue hardship. Proving with evidence that there is a real safety concern with a particular form of accommodation is only the beginning of the case that the employer would need to prove. The employer would also need to prove that it has no other positions available where the accommodation could be implemented in a safe way, and that it has looked at all of the possible safe alternatives to the allegedly unsafe accommodation.
The second issue raised in this story is whether it makes a difference if a victim of discrimination in the employment context is a probationary employee or a long-term employee? For the purposes of liability it does not make a difference. Discrimination in employment is always illegal, regardless of whether the employee has part-time status, probationary status, is a contract employee, or simply an employment candidate. However, assuming that discrimination is proven, an employee’s length of service has an effect on the amount of retroactive wage loss damages he or she is likely to be awarded. For example, a person with 15 years of full-time service who was fired for a discriminatory reason would have a stronger claim to retroactive lost wages than would a person who had been on the job for 3 days.
It is worth remembering however, that wage loss damages are just one category of damages available to a victim of workplace discrimination. The Tribunal has jurisdiction to award general damages which compensate the victim for the inherent value of his or her right to be free from discrimination in employment. These damages vary with the outrageousness of the alleged conduct and a number of other factors. It is not unheard of for short-service employees to receive large general damage awards when the discrimination is considered outrageous. For example, we refer you to the decision in Maciel v. Fashion Coiffures, 2009 HRTO 1804 (CanLII), where the Applicant had less than 1-week of service, and was awarded $15,000.00 in general damages, which greatly exceeded her recovery for lost wages.