In a BC Human Rights Tribunal case from earlier this year, the complainant, Rachel Benton, was hired to work as an administrative assistant for the respondent, Richmond Plastics Ltd., which was a small, family-owned company. She was fired on her first day, just hours after she disclosed her longstanding mental health conditions and medications to a co-worker and to management.
Benton had not been asked about her mental health during her interview, and she was described by her interviewer as a “perfect candidate” at the time. She alleged that Richmond Plastics had violated the B.C. Human Rights Code and discriminated against her because of her mental disorders.
The employer denied the allegation, saying that the president of the company made the termination decision and the decision was in no way related to her mental health disclosure. The president did not deny that the chief financial officer had told Benton that she was being fired for reasons related to her mental health but said that statement was simply not true.
The tribunal accepted that Richmond Plastics’ conduct was discriminatory. The tribunal awarded Benton $30,000 as damages for injury to her dignity, feelings and self-respect and another $35,000 for 12 months of wage loss.
Be careful with snap judgments
Benton’s co-workers had a negative first impression of her. They described her as odd, unprofessional, nervous, talking loudly, not making eye contact, and wearing an inappropriate outfit. They questioned whether she would “fit” in the company.
The tribunal held that these snap judgments were unfair, harmful, and unwarranted. It noted that the co-workers paid undue attention to Benton’s “awkward and unsuccessful” attempts to join in the office banter. While concerns about fit and performance can be non-discriminatory, these concerns were “fairly minor and could likely have been quickly corrected.” Ultimately, Benton was not given a fair opportunity to prove herself or to address those concerns.
Instead, her employment was terminated by the chief financial officer – the same person who had previously described her as a “perfect candidate” after her interview. The CFO explained that Benton was being terminated because she did not disclose her medications. When Benton responded that she was not required to disclose her medications, the CFO answered, “Yes, and it makes me feel uncomfortable.”
The tribunal pointed to the suspect timing of Benton’s termination in finding evidence of discrimination: she was terminated just hours after disclosing her mental illness. Even more tellingly, Benton was explicitly told she was being terminated because of her mental health disclosures.
Crucially, the tribunal stressed that mental illness did not have to be the only cause for Benton’s termination, or even a primary one. Although there were several non-discriminatory factors that contributed to Benton’s termination, the fact that her mental illness was one of those factors was sufficient to make her termination discriminatory and impermissible.
Consider employee vulnerability before termination
Benton received $65,000 in damages, despite only having worked at Richmond Plastics for one day. The reasons include:
•the significance of employment to financial and emotional well-being;
•the aggravating comments by the CFO;
•Benton’s vulnerability, as a result of both her status as an employee and her mental illnesses; and
•the severity of the effect of the discrimination on Benton.
For the tribunal, the most significant factor was the effect of the discrimination on Benton. As a result of this incident, Benton’s mental health declined to the point where she experienced depression, contemplated suicide, suffered daily migraines, isolated herself and dreaded leaving her house. She did not begin to recover until almost a year after the discrimination.
Before the discrimination, Benton contributed to her household and was either employed full-time or actively looking for work. After the discrimination, Benton’s anxiety and depression rendered her unable to even look for work.
In the end, while it is always good practice to be respectful and self-reflect on judgment calls, this is even more important when terminating an employee, especially when he or she is relatively new and may be vulnerable.
Consider all the circumstances and consult legal counsel
We continue to see an increase in high damage awards in cases where an employer’s unintended conduct has a lasting and damaging effect on an employee. Human rights law will usually be applied equally to all employees regardless of their years of service, and the financial and reputational risks associated with these claims are significant.
Benton’s case is a good reminder for employers to be proactive in their decision making and consider all of the circumstances before termination and again when a claim is made. •
Alissa Demerse is a partner at Roper Greyell. Crystal Choi, a summer student at Roper Greyell, contributed to this column.
The article is for general information purposes only and does not constitute legal advice.