The extraordinary award of 10 years of back pay made in the recent Ontario case of Fair v. Hamilton-Wentworth District School Board highlights the high potential cost of failing to accommodate an employee’s disability.
Ms. Fair, who was employed as Supervisor, Regulated Substances, Asbestos, successfully established that she had been discriminated against on the basis of her disability, an anxiety disorder, both with respect to her need for accommodation and ultimately in relation to the termination of her employment on July 9, 2004. The Tribunal agreed that, because of her disability, Ms. Fair was incapable of performing the essential duties of her job. However, reasonable accommodation may, in some circumstances, be accomplished by a transfer to another position. In this case, the Ontario Human Rights Tribunal found that there were work opportunities starting in June 2003 in which Ms. Fair could have been placed, either temporarily or permanently, without causing undue hardship to the School Board.
As a remedy, the Tribunal ordered that the School Board reinstate Ms. Fair to a “suitable position”, and pay her approximately $420,000 in back pay as compensation for lost wages going back 10 years to when she could have been placed in an alternative position with the School Board. There was no discussion in the award about any efforts by Ms. Fair to mitigate her loss. The Tribunal also awarded Ms. Fair $30,000 for injury to dignity, feelings and self-respect.
While this award is exceptional, the decision highlights the broad scope of remedies available to human rights tribunals. Unlike a claim for wrongful dismissal, where the courts will not reinstate employees and are generally limited to damages representing pay in lieu of reasonable notice, human rights tribunals seek to restore a complainant to the position he or she would have been in had the discrimination not occurred.
Section 37 of the B.C. Human Rights Code gives the B.C. Tribunal broad discretion regarding possible remedies, which include the following:
- Declaratory relief;
- Ameliorative orders;
- Re-instating an employee to a position that was lost or granting an employee a promotion that was not granted as a result of discrimination;
- Award for lost income arising because of the discrimination;
- Award of damages for injury to dignity, feelings and self-respect;
- Expenses related to the discrimination;
- Interest; and
B.C. employers have also found themselves paying an increasing price for failing to accommodate their employees. While the high water mark for damages for injury to dignity, feelings and self-respect remains $35,000 (Senyk v. WFG Agency Network (No. 2)), employers need to be wary of potential lost wage claims as well. In Kerr v. Boehringer Ingelheim (Canada) (No. 4), Ms. Kerr was awarded $352,898.02 in wage loss damages following a finding that the employer failed to accommodate her disability.
Although the wage loss award in Fair was exacerbated by the unusual length of time that passed between when Ms. Fair filed her complaint and the final decision, which spanned over 8 years, this case can still serve as a reminder of the importance of carefully addressing accommodation issues in the workplace and the potential consequences to employers of failing to do so.