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I
am a McDonald's convert. Admittedly, it was a rough
ride. I never let my daughter, Aedan, eat there. Her
training as a foodie resulted in her sharing my disdain
for fast food. When my friends took their children there,
I silently snickered in disopprobrium. My superciliousness
had a long lineage. Back in my bar admission course,
I had a crush on a classmate until she praised McDonald's.
McDonald's, I believed, represented capitalism's worst
ravages, a homogenizing descent to mediocrity.
That
was then.
Now,
I am an unabashed admirer, although I might steer clear
of its Marine Drive location in Vancouver.
Rather
then succumb to the human rights "police,"
McDonald's fought back to protect the right of Canadians
to eat safe food. It and Canadians lost.
What
I learned from this decision is McDonald's is a stickler
for cleanliness: Employees must wash their hands after
every break, after cleaning their work area, before
entering the production area, before putting on gloves,
after shaking hands, after touching a door handle and
on it goes. It is so focused on being sanitary that
apart from all the previously mentioned instances, a
bell goes off every hour, telling employees to wash
their hands. No botulism here!
Besides
good corporate citizenry, this reflects the law. It
ensured McDonalds complied with the B.C. Health Act
and the B.C. Centre for Disease Control's Food Protection
Guidelines.
But
Beena Dat could not comply. A skin condition prevented
her from wearing gloves or regularly washing her hands.
She went on disability and unsuccessfully attempted
to return to work three separate times. Her specialist,
Dr. Kit-son, opined he had no doubt, if she attempted
to return to work, her "hands would disintegrate
in a week." She could not return to any job involving
exposure to soap and water, in his view, thereby eliminating
"restaurant work of any kind."
Dat
complained to the B.C. Human Rights Tribunal who appointed
Judy Parrack to decide the case. I am obliged to admit
to knowing Parrack. She was my former wife's family
lawyer, who helped negotiate our prenup more than 10
years ago. Since then, she has moved on to work for
the B.C. Public Interest Advocacy Centre and then into
private practice, acting for such bodies as the Woman's
Legal Education and Action Fund. Does this qualify her
to be a neutral deciding human rights complaints on
behalf of taxpayers?
Ms.
Parrack decided Mc-Donald's should have cross-examined
the specialist rather than taking his medical report
at face value.
She
also considered whether it was possible pieces of different
jobs could have been extracted to create a position
Ms. Dat could perform without frequently having to wash
her hands.
This
is despite Ms. Parrack's acknowledging all jobs at Mc-Donald's
require hand washing and, depending on how busy a section
is, any position might quickly take over for another.
Notably,
Ms. Parrack found McDonald's liable for not attempting
to construct such a position and awarded $50,000 in
damages, including $25,000 for injury to Ms. Dat's "dignity,
feelings and self-respect."
Again,
this is despite her acknowledging it might not even
be possible to create such a postion.
What
would the tribunal have awarded to an employee earning
$70,000 a year, rather than Ms. Dat's $9.75 an hour?
Worst
of all, McDonald's was ordered to "cease the discriminatory
conduct or similar conduct and refrain from committing
such conduct in the future." One might think consumer
safety should supercede the right of an employee with
unclean hands!
In
a federal Human Rights decision on religious discrimination
released on April 16, Ali Tahmourpour, who had failed
his initial training with the RCMP, was ordered to be
re-enrolled.
His
sergeant announced the troops could not wear jewellery,
except for Mr. Tahmourpour, who was allowed to wear
his religious pendant.
Karen
Jensen, a former trade union lawyer who was the adjudicator,
found Mr. Tahmourpour's perception this identified him
as different was sufficient to constitute discrimination.
Evidence
of discrimination was also found against Corporal Dan
Boyer who frequently swore and yelled at Mr. Tahmourpour.
With
the help of a professor at the University of Toronto
who specializes in police racial profiling, Ms. Jensen
concluded Mr. Boyer's reference to himself as politically
incorrect showed his disdain for human rights. In finding
Mr. Boyer racist, Ms. Jensen relied upon a study several
years old that found 51% of white male RCMP officers
resented minorities who they believed had been advantaged
by employment equity.
Outrageous.
The worst form imaginable of gender stereotyping. Imagine
if an employer came to conclusions as to a particular
employee based on what others of that "race"
or "gender" had done. Being against political
correctness is now effectively deemed a form of racism.
She
found Mr. Tahmourpour's underperformance, which resulted
in his dismissal, was likely caused by the racism he
experienced. Based on the views of the U of T professor,
she concluded the higher dropout rate for visible minorities
was further evidence of this. Nor did she see as evidence
the RCMP got it right, the fact that in the eight years
following his dismissal, Mr. Tahmourpour never found
stable employment anywhere else.
Here
are my some of my recommendations:
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The government should appoint adjudicators who are
not advocates;
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The Human Rights Code should be amended to ensure
public safety prevails over issues of accommodation;
-
Employers should pro-actively appoint their own
doctors and develop conclusive evidence employees
cannot be accommodated before dismissing them;
-
Employers must not refer to their accommodation
efforts in discussions with other employees.
Howard
Levitt, counsel to Lang Michener LLP, is an employment
lawyer who practises in seven Canadian provinces and
author of The Law of Dismissal for Human Resources Professionals.
He can be reached at hlevitt@langmichener.ca
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