Small Employer’s Lack of Understanding Not Excuse for Dual Discrimination

Written by Lewis Waring, Paralegal, LL.B., Articled Clerk, Editor, First Reference

In a recent Alberta ruling, a small employer was found to have discriminated against its employee on the grounds of family status when it removed her role and dismissed her for cause following the resignation of her common-law spouse. Given its refusal to recognize the employee’s taking of medical leave in her final days of employment, the employer was also liable for disability discrimination under the Alberta Human Rights Act.

Background

The employer operated a small property services business. The employee worked for the employer in an administrative role from 2014 until she was wrongfully dismissed in 2017. The employee’s common-law spouse had also worked for the employer as one of its directors.

In April 2017, the employee’s husband resigned due to a disagreement with his co-directors. Two days later, the employer removed the employee from her position and forced her to take a new position as an “in-field employee” under the threat of dismissal. The employer claimed that the employee’s continued employment as an administrative employee represented a “conflict of interest,” justifying its decision to remove her. The employee responded by sending an email requesting two days to answer.

Following that email, the employee experienced mild panic attack symptoms, including shortness of breath and dizziness, as well as anger and sadness. The next day, the employee’s doctor placed her on a two-week medical leave for acute stress and anxiety arising from the employer’s behaviour. The employer disputed the legitimacy of the employee’s leave based on its observation that she did not “look sick” and “seemed fine,” describing the employee’s disability as “not doctor serious.” One day after taking leave, one of the employer’s directors attended the employee’s home and asked for her work computer and other employer property.

One week after removing the employee’s work computer, the employer dismissed the employee for cause. In its termination letter, the employer did not provide details as to the basis for the employee’s dismissal. In fact, up to that point, the employee had heard nothing from the employer about her request for medical leave. Furthermore, the employer had at no point raised any performance concerns with her. Finally, the employer had at no time discussed with the employee its concerns about managing the alleged “conflict of interest” arising from her common-law spouse’s resignation.

In response, the employee filed an application with the Alberta Human Rights Commission, claiming compensation for discrimination based on her family status and disability. The employer’s family status discrimination arose from the fact that her spouse’s resignation had been a factor in her dismissal. Her disability discrimination arose from the fact that the employer refuted the legitimacy of the employee’s medical leave. The Alberta Human Rights Commission accepted the employee’s claim for discrimination and awarded her $30,000 in general damages and $2,444 in lost wages.

Analysis

As often occurs, the employer discriminated against the employee in more than one way. The employer’s initial discrimination was based on the employee’s family status as an individual in a common-law relationship with the employer’s former director.

The employee’s family status discrimination was fairly straightforward insofar as it openly admitted its removal of the employee from her role due to her common-law spouse’s resignation. Although it viewed its own actions as legitimate, it had unknowingly violated the Alberta Human Rights Act, which defines “family status” as “the status of being related to another person by blood, marriage or adoption.” Case law has found that family status discrimination is not limited to cases in which an individual is subject to adverse treatment for their status as married or single but also includes circumstances where an individual is discriminated against due to the particular identity of his or her spouse or family member. The employer in this ruling committed just such acts, subjecting the employee to adverse treatment based on the fact that she was in a common-law relationship with an individual it sought to distance itself from.

The employer added to this initial discrimination by failing to recognize the employee’s disability in the form of medically diagnosed acute stress and anxiety. Although anxiety disorders have long been recognized as a mental disability under Canadian human rights legislation, the employer failed to take the employee’s disability seriously and, instead, considered it grounds for dismissal. The employer mistakenly assumed that an employee was only disabled if the employee was bedridden, demonstrably “unwell,” or any other number of stereotypical assumptions. Given the employee did not fit its own conception of what disability looked like, the employer considered the employee’s medical leave as some type of insubordination serious enough to justify her dismissal for cause. In doing so, the employer committed discrimination under the ground of disability, heaping liability on top of liability.

The result of the employee’s course of conduct was a dismissal of an employee on two different grounds of discrimination.

Takeaway

This decision involved a small business finding itself in serious liability after committing two very different grounds of discrimination. Each of these grounds would have been sufficient to ground a claim of human rights discrimination. However, the employer’s apparent commitment to discriminating against the employee bears mentioning. While discrimination occurs in businesses of all shapes and sizes, the employer’s behaviour seemed to be linked to a general lack of organization and a failure to understand at any level its obligations as an employer. In some sense, this decision represents a situation that many small businesses might find themselves in. While larger organizations often have the funds and experience to draft policy and hire human resources officials to ensure they comply with their legal obligations, smaller organizations often resolve disputes with employees on their own. This ruling demonstrates that the legal system does not grant smaller employers exemptions from the rights guaranteed to employees under human rights legislation.

Small businesses, which are more likely to be tied together by personal relationships, are perhaps at special risk for liability. Individuals leading such small organizations may simply be less knowledgeable about their obligations as an employer and thus be more inclined to treat employees as they see fit with no knowledge that doing so puts them at risk of liability that can jeopardize the success of their business. Small employers, in particular, can take from this ruling the fact that the legal system assumes an understanding of the obligation to avoid discrimination regardless of whether such employers do in reality. While boards of directors may in some cases consist of old friends whose relationships may sour, it is crucial for employers of all sizes to parse their personal grievances from their employment obligations in order to avoid costly liability.