It should come as no surprise to learn that McDonald's Restaurants place a high priority on maintaining a clean restaurant. As a restaurant operator, McDonald's is required under the Health Act (British Columbia) and the Food Premises Regulations (British Columbia) to ensure that their premises maintain proper personal hygiene requirements. McDonald's maintains a very strict hand-washing policy that requires all managers and crew members to frequently wash their hands, using proper hand-washing procedures. The company had a timed hand-washing system installed which was an integral part of the daily restaurant operations and encouraged managers and crew members to wash their hands at least once per hour in order to meet health department regulations that require monitoring and documentation of hand-washing. It also had provisions for disposable gloves. The wearing of disposable gloves did not eliminate the need for frequent hand-washing. In a recent case, McDonald's ran afoul of the Human Rights Code (British Columbia) when it applied this policy to one of its employees. The case has serious implications for employers who try to accommodate disabled employees.
Beena Datt started working at McDonald's in December 1981. She remained employed by McDonald's for 23 years and expected to work there until her retirement. Her evidence was that she loved working at McDonald's, enjoyed the convenience of working shifts, loved the customers and felt that the other employees were like her family. She enjoyed a very attractive benefits package, known as "the Big Mac Plan." By all accounts she was an excellent employee.
Unfortunately, early in 2002, Ms. Datt developed a very painful skin condition which progressively worsened. She went on short-term disability, attempted to return in April 2002, but after two weeks her skin condition returned and she went off work again. A second attempt to return to work in January 2003 was similarly unsuccessful. She began collecting LTD benefits through Great West Life ("GWL"). In July 2003, the Complainant attempted a third return to work which was similarly unsuccessful.
GWL, not McDonald's directly, dealt with the Complainant and her doctors. The assessments and treatments varied throughout the next 16 months but it appeared that the rehabilitation counsellors and the doctors held the view that Ms. Datt could only return to an administrative capacity or in a position that did not require frequent hand-washing and food preparation or the wearing of plastic gloves.
The Complainant was advised by GWL's rehabilitation consultant that there were no administrative positions available and that she would not be able to return to work at McDonald's. The Complainant insisted that she could perform some duties and met with an HR consultant at McDonald's head office in November 2004. It was at this meeting she was advised that her employment was being terminated and that the decision had been finalized. This was the first time anyone at McDonald's had met with the Complainant to discuss her situation.
Ms. Datt filed a complaint with the B.C. Human Rights Tribunal ("Tribunal"). On August 3, 2007, the Tribunal issued a decision finding in favour of Ms. Datt. The decision is important in a number of respects, not the least of which is the significant and record-setting financial award for damages for injury to dignity and self-respect.
Not surprisingly, the Human Rights Tribunal found that the hand-washing policy was rationally connected to the safety requirements and regulations and was adopted in good faith. Accordingly, the first two requirements of the Meiorin test1 were satisfied. The issue, therefore, focused on whether McDonald's demonstrated that it was impossible to accommodate the Complainant's hand-washing disability without suffering undue hardship.
The Tribunal ruled that although GWL could work with McDonald's regarding Ms. Datt's return to work, it did not, nor could it assume the primary responsibility for accommodating Ms. Datt. The primary responsibility for the duty to accommodate lies with McDonald's. One of the concerns of the Tribunal was that GWL would not have a clear understanding of McDonald's financial circumstances, the impact of workplace changes on other employees and the safety issues that may be relevant to the duty to accommodate a disabled employee. And, as will become apparent, the failure of McDonald's to deal directly with the Complainant in her particular circumstances, injured her dignity, feelings and self-respect.
The Tribunal did not accept the blanket requirement that hand-washing had to be performed on an hourly basis but only "as often as necessary to prevent the contamination of food."
The Tribunal found that McDonald's had failed to conduct a thorough and careful assessment to determine whether there were any duties that Ms. Datt could perform, including wearing non-plastic gloves to do certain duties.
Further, the Tribunal rejected the argument that the medical evidence established that the Complainant could not return to work (despite some fairly broad statements to that effect in the medical reports). There were other positions within the restaurant, where such a requirement may not be necessary such as the drive-thru windows, and hostess and swing manager duties. It was up to McDonald's to obtain clear and specific medical evidence through further discussions with the Complainant and her doctors in order to reach that decision. McDonald's failed to question the doctors as to the meaning of statements in assessments that the Complainant could not do "frequent hand-washing."
The Tribunal accepted that the goal of preventing the contamination of food is why McDonald's established its hand-washing policy and that goal could not be understated as it accords with common sense in the handling and preparation of food. However, it found that there certainly were duties that Ms. Datt could have performed that might not have required her to handle food. The point of the decision, however, was that McDonald's had not assessed Ms. Datt's condition in the context of the actual duties required of each position.
Further, the Tribunal noted that there was no evidence to address whether the goal could have been achieved with less frequently timed hand-washing – "there was no evidence of the actual risk to the public if Ms. Datt, the only employee who had some form of hand-washing restriction, was provided with modified duties or a modified way of working."
Medical evidence consisted of documents created by GWL which were entered by consent. No medical doctors or experts were called to testify. Ms. Datt saw a number of doctors, including her family doctor, Dr. Tan, and skin specialists, Dr. Kitson, Dr. Zhou and Dr. Morton. Dr. Kitson first examined Ms. Datt on September 23, 2002.
At various times Dr. Kitson seems to have supported McDonald's claim that Ms. Datt could not be accommodated. For example, it was noted by Dr. Kitson (or others where indicated):
- On her return to work she could not use her hands [April 28, 2002].
- There needed to be modification of Ms. Datt's job requiring less hand-washing [April 24, 2003].
- Ms. Datt could not use her hands [April 28, 2003].
- She was told to stop wearing gloves because they made her condition worse [May 2003].
- Ms. Datt's third attempt at a return to work failed and she returned to Dr. Kitson and started to resume her treatments [August 1, 2003].
- Ms. Datt could not do "wet work or frequent hand-washing" [September 15, 2003].
- Ms. Datt could not do restaurant work [September 15, 2003].
- The handling of cash may be relevant to Ms. Datt's problem [Dr. Morton's letter to Dr. Kitson in 2003].
- Ms. Datt confirmed that she was unable to wear gloves all the time at work and as a result her condition returned and she had to stop working [November 7, 2003].
- Ms. Datt could not work in the restaurant business [November 14, 2003].
- In completing another report under the heading "Future Treatment Goals" Dr. Kitson wrote "new job" [December 8, 2003].
- Although Ms. Datt wanted to return to work, her hands were not completely healed and it was Dr. Kitson's impression that they would break out again if Ms. Datt returned to her old job [July 5, 2004].
- Dr. Kitson prepared a report indicating that there were jobs in cash, food preparation or cleaning. In answering the questions set out in the report, Dr. Kitson stated that Ms. Datt could not perform any job requiring "frequent hand-washing ever" and that she could not "currently" return to a restaurant position with McDonald's [July 14, 2004].
- Dr. Kitson e-mailed GWL that Ms. Datt could not return to any job involving soap and water exposure or the constant wearing of rubber or other waterproof gloves and that in Dr. Kitson's stated view this eliminated restaurant work. He noted that Ms. Datt was willing to return to work but in his view there was no doubt that her hands would "disintegrate within a week" .
- Dr. Kitson stated in a report to GWL that restaurant work, of any kind, would not work for Ms. Datt although she could work for McDonald's in an administrative position or in a position that did not require "frequent hand-washing, food preparation or the wearing of plastic gloves" [August 25, 2004].
The Tribunal, however, did not accept this evidence as satisfying McDonald's duty to accommodate Ms. Datt. The Tribunal challenged the medical evidence by finding that at no time did the Complainant's doctors say that she could never wash her hands, that there was a risk to the public or that her skin condition might lead to contamination of food. In the Tribunal's view, the issue was not whether Ms. Datt could wash her hands; the issue was how often. While accepting McDonald's legitimate interest in not wanting to risk contamination of food, if that was a possibility, the Tribunal found that the issue was not canvassed with her doctor and McDonald's did not properly assess the risk and application of its policy in the context of an individual assessment of Ms. Datt.
In respect of the obligation of an employer to create a job, the Tribunal noted that the issue was not whether McDonald's had an obligation to create a job but whether McDonald's had considered, given the jobs available, whether it could have modified or differently organized them for Ms. Datt.
In concluding its decision the Tribunal stated:
McDonald's did not argue that it did not have the financial or other resources to accommodate Ms. Datt. Given the size of McDonald's, and the resources available to it, I am at a loss to understand why McDonald's did not take more steps to try and accommodate Ms. Datt, a 23-year employee. Ms. Datt was not entitled to a "perfect" solution but she was entitled to a fulsome consideration of her restrictions and how those restrictions intersected with the hand-washing policies and the jobs that were available. Without having done so, neither Ms. Datt nor McDonald's was in a position to know what the outcome of a return to work, with accommodations, might have been. [para.249]
This case is unique in that the Tribunal did not find that McDonald's could have accommodated Ms. Datt. Further, it did not consider whether the onus was on Ms. Datt, in light of the medical evidence, to call sufficient evidence from her doctors to clarify what they meant by the comments noted above, having regard to the actual workings of the restaurant. Rather, it was McDonald's who was found to have failed to properly examine these issues with Ms. Datt's doctors. Therefore, the violation of the Code lay in the fact that McDonald's had not taken sufficient steps to ensure that Ms. Datt could not be accommodated. Interestingly, the Tribunal stated:
It may be that, at the end of the day, Ms. Datt could not have been accommodated at McDonald's because she simply could not meet its hand-washing policies doing any job or combination of jobs, but based on the evidence before me, I find that McDonald's failed to take all the necessary steps to make this final determination. [para. 250]
Accordingly McDonald's was found to have failed to accommodate Ms. Datt to the point of undue hardship contrary to s. 13 of the Code.
McDonald's was ordered:
- to cease and desist discriminatory conduct or any similar conduct.
- to compensate Ms. Datt for lost wages from the date that she was terminated to the date of the decision. Accordingly, she was compensated slightly less than two years' wages less mitigation income.
- to pay the difference between what Ms. Datt would have paid in taxes on her earned income from McDonald's, if she had remained employed, and the amount she will now have to pay as a result of a lump sum payment.
No award was made for future wage loss although it is clear that there was a potential for such a damage claim. Ms. Datt was employed at the time of the hearing at The Bay and hoped to obtain full-time employment within two or three years. The Tribunal noted there was no "expert evidence" which would have provided it with the basis for calculating future wage loss, and accordingly, any calculation would be too speculative.
Ms. Datt was awarded:
- $1800 for loss under the profit sharing plan;
- $200 in compensation for expenses incurred to seek re-employment. damages for medical expenses;
- $225 for wages she lost as a result of attending the hearing; and
From an employer's point of view, perhaps one of the most disturbing aspects of the remedy decision was the damages awarded for injury to dignity, feelings and self-respect. Not so long ago, the highest award in this area was $10,000. However, recent cases have seen that amount increase. Relying on the comments of the Supreme Court of Canada regarding the vulnerability of employees and the importance upon which society attaches to employment, the Tribunal awarded Ms. Datt the sum of $25,000 to compensate her injury to dignity and self-respect. This remains the highest amount awarded by the Tribunal to date. However, if recent court decisions for punitive damages in wrongful dismissal cases are any indication, we can expect that these awards will continue to increase substantially.
Impact of the Decision
The decision is noteworthy for a number of reasons. First, the Tribunal has raised the ceiling for damage awards for injury to dignity and self-respect to $25,000, which is a 25% increase over the most recent decision. Here, arguably, McDonald's had taken sufficient steps to satisfy the duty to accommodate and relied in good faith on the medical opinions, including those noted above. Was there no onus on Ms. Datt to show that accommodation could have been made in the particular facts of her case, notwithstanding the medical evidence? Further, the Tribunal specifically did not conclude that Ms. Datt could have been accommodated in these circumstances. Given the importance of the hand-washing policy to an organization like McDonald's, including their statutory obligations, it is remarkable that the Tribunal would use this occasion to substantially increase the award by "injury to dignity."
Secondly, it appears that the Tribunal was particularly affected by the fact that McDonald's is a significant employer. For example, it placed particular weight on Ms. Datt being terminated in a rather cold and callous way by someone she didn't know and who had not investigated what job opportunities were available. As the Tribunal stated:
Ms. Datt expected better from her employer, an employer known for its charitable works. McDonald's should have "stepped up to the plate" and done everything it could to accommodate Ms. Datt before it terminated her employment. Ms. Datt was upset that it failed to do so. [para. 291]
One has to wonder if the same considerations would have applied if this had been a "Ma and Pa" restaurant operation with limited financial resources.
The McDonald's case arguably represents a significant precedent that complainants will use to claim larger and larger awards from employers in this very murky area of the duty to accommodate. This decision may indicate the problems that employers face in trying, in good faith, to accommodate their employees in their particular circumstances. Nevertheless, since the decision will not be judicially reviewed, it will remain good authority.
Employers should consider the following points in attempting to accommodate an employee who suffers from a disability:
- Do not rely on a third-party carrier's conclusions after receiving, analysing and considering the medical information; consider it yourself.
- Ensure that someone who is familiar with the operation, the employee's workplace and the company's policies has some dealings with the medical experts, including rehabilitation counsellors, etc.
- If it appears that the employee can be accommodated by modifying the job duties short of undue hardship, then the employee should be given a trial period in that position to see if it alleviates the problem.
- If it appears that the employee cannot be accommodated, ensure that there is evidence to prove this conclusion. This means responding to suggestions put forward by the employee or their medical advisors.
- Consider the Wallace principles regarding unjust dismissals. If a decision has been made to terminate an employee due to a disability, then the employer should be particularly sensitive to the employee in communicating that information to avoid an increased damage award.