Ontario Board of Inquiry
Myrna Marzano Complainant
v.
Nathar Ltd. and Nathan Langburt Respondents
Before: Ontario Board of Inquiry, Bernard Adell
Comm. Decision No.: 458
Appearances by: Anthony D. Griffin, Counsel for the Complainant Ahron Langburt, Counsel for the Respondents
DISABILITY — employment terminated on basis of Crohn's disease — REASONABLE ACCOMMODATION — duty to accommodate short of undue hardship — DAMAGES — determination of sufficient effort to mitigate
Summary: The Board of Inquiry finds that Myrna Marzano was discriminated against by Nathar Ltd. and Nathan Langburt when her employment was terminated because of a disability.
Ms. Marzano was employed as a salesperson by the respondents beginning in February 1987. She was discharged on November 21, 1988, approximately one month after she had been diagnosed as having Crohn's disease, which is a chronic intestinal ailment. Ms. Marzano was absent from work for a month in October 1988 because of Crohn's disease and when she returned she continued to experience some pain and had to go to the toilet more often.
The Board of Inquiry rejects the respondents explanation for the discharge. The respondents argue that Ms. Marzano's employment was terminated solely because of her lack of sales skill. However, the Board of Inquiry finds that at no time prior to her illness was Ms. Marzano ever informed that there was a problem with her work and, in the circumstances, the Board finds that her disability was a factor in her termination.
The Board of Inquiry also finds that if Ms. Marzano's disability affected her work, the employer was obliged to accommodate her to the point of undue hardship. No accommodation, such as part-time work or split shifts, which might have accommodated Ms. Marzano's need for breaks, was considered.
The Board of Inquiry concludes that the respondents violated the Ontario Human Rights Code by discharging Ms. Marzano. It orders the respondents to pay Ms. Marzano compensation for wages she lost in the amount of $6,148 with interest to be paid at 11 percent from May 1989 to the date of this decision. In addition, the Board of Inquiry orders the respondents to pay Ms. Marzano $400 as compensation for the humiliation and upset she experienced.
Cases Cited
Decker v. K & G Pool Products Ltd. (1990), 1990 CanLII 12456 (BC HRT), 12 C.H.R.R. D/87 (B.C.H.R.C.): 20
Legislation Cited
Ontario
Human Rights Code, 1981, S.O. 1981, c. 53: 1
s. 4: 28
s. 4(1): 35, 41
s. 16(1): 28, 35
s. 16(1a): 28, 32, 35, 41
s. 40(1)(b): 40
Authorities Cited
Lepofsky, M. David, "The Duty to Accommodate: A Purposive Approach" (1992) 1 Can. Lab. L.J. 1: 32
1The complainant, Myrna Marzano, was discharged from her employment by the respondents on November 21, 1988. On February 17, 1989, she filed a complaint under the Ontario Human Rights Code, 1981, S.O. 1981, c. 53, as amended, alleging that the respondents had discriminated against her on the basis of handicap (Crohn's disease) and on the basis of sex. The respondents reply that the only reason for Ms. Marzano's discharge was that she was not a sufficiently competent salesperson.
2As the complaint was brought under the Code as it stood at the time of the discharge in 1988, all references in this decision are to the section numbers in the Code as of that time, and not to those in the current Code (R.S.O. 1990, c. H.19).
THE EVIDENCE
3The Futures Program is a government-funded program to help young people gain entry to the workforce. It provides temporary, subsidized placements with employers who may subsequently be willing to provide permanent jobs. Through their clothing stores in Cornwall, the respondents have from time to time provided openings for placements under the Futures Program.
4From February 23, 1987, to June 26, 1987, Ms. Marzano, who was then about 18 years old, worked for the respondents under the Futures Program. After that, they took her on as a regular employee. Her duties were those of a salesperson. They included selling merchandise to customers, operating the cash register, unpacking and ticketing merchandise, doing stock inventory, and running errands. Ms. Marzano worked most of the time at Kastners, a large store which is owned and operated by the respondents and which carried men's, boys', and women's clothes. She also worked some of the time at Image 1, a smaller, more specialized clothing store which is around the corner from Kastners and is also owned and operated by the respondents.
5The head person at all relevant times, at Kastners and apparently at Image 1 as well, was Nathan Langburt. The evidence indicates that although certain other people had managerial and supervisory responsibilities at one or both stores, Mr. Langburt had the ultimate authority in staffing and other matters.
6William Doherty, manager of the Futures Program in Cornwall, gave unchallenged testimony to the effect that on the several occasions when he asked Mr. Langburt how Ms. Marzano was doing, he received favourable replies. On the first three of those occasions — two of them during Ms. Marzano's placement and the third one about a month after she had gone onto Kastners' regular staff — Mr. Langburt's comments were entirely favourable, with emphasis on her good attitude and willingness to learn. The final inquiry, on September 10, 1987, over two months after she had become a regular employee, brought a response from Mr. Langburt to the effect that she could "still improve on her sales skills, but that is not a problem." It appears that no other reservations about Ms. Marzano's performance were ever expressed by Mr. Langburt to Mr. Doherty. Nor, according to the evidence, did Mr. Langburt ever express any such reservations to Ms. Marzano herself, or to anyone else who worked in his stores. In addition, it appears that none of those people ever expressed any such reservations to Ms. Marzano.
7Ms. Marzano testified that in June 1987, when she moved from Futures Program status to regular employee status, Mr. Langburt simply told her that she was doing well and that he was happy to have her on his staff. Her uncontradicted evidence was that she subsequently asked Mr. Langburt a few times how she was doing, and got no negative feedback at all. The only comment of a critical nature which she received was a request from Mr. Langburt that she change her style of dress. According to the evidence, she complied with that request, and nothing more was said to her on the matter. In August 1988, she asked Mr. Langburt for a raise in pay, and he gave her an increase of $.25 an hour.
8In September 1988, Ms. Marzano began to feel ill, with cramps, diarrhea and a low fever. In October 1988, she was hospitalized for two weeks, and was found to have Crohn's disease, which is a chronic, non-contagious intestinal ailment. After her stay in hospital, she remained at home for two more weeks, and went back to work on November 7. The ongoing treatment for her disease consisted of the avoidance of certain foods and the taking of two types of medication. According to Ms. Marzano's testimony, that medication in itself had no effect on her ability to work, and there was no evidence to the contrary. She admitted that from the onset of her illness, she had to go to the toilet more often than before, and that each trip to the toilet would take a few minutes.
9When Ms. Marzano returned to work on November 7, Mr. Langburt asked her how she was, apparently in a pleasant and friendly way. She replied that she was fine, but that she had Crohn's disease. From her testimony, she was somewhat surprised by what she took to be Mr. Langburt's lack of interest in her response, and by the fact that he quickly turned his attention to other matters.
10There are three somewhat different versions before me as to what happened between November 7, when Ms. Marzano came back to work, and November 21, when Mr. Langburt told her she was being discharged. Mr. Langburt's version was as follows. Ms. Marzano, he acknowledged, was an honest, conscientious employee who did what she was told and who tried to learn. But what really mattered in his business was sales skill — all other attributes were secondary — and Ms. Marzano, he said, was never an adequate salesperson. Mr. Langburt could not point to any figures in support of that assessment of her sales ability, because she was on straight salary rather than commission, and no record was kept of what each employee sold. His assessment, he said, was based on what he saw. Sales skill, he maintained, is an innate skill which cannot be learned. Either you have it or you don't, and Ms. Marzano, in his view, didn't. That fact, he said, became clear to him quite early on in her time at Kastners, and by the summer of 1988, he claimed, he had decided in his own mind that she would have to go. He admitted, however, that he did not communicate that decision, either to Ms. Marzano or to anyone else, until November 21, 1988, when he told her that she was being terminated with two weeks' notice.
11When asked why he did not warn Ms. Marzano of her inadequate sales performance or give her any guidance on how she might do better, Mr. Langburt replied that it would have done no good. When asked why he waited several months between the time when he claimed to have decided to terminate her and the time when he told her of the termination, he said that he did not want to hurt her, because she was a good person and he knew she was ill. He insisted that Ms. Marzano's illness played no part in her discharge. In fact, he said that he thought she looked better after she returned to work on November 7 than before her stay in hospital. He also pointed out that one of his long-term employees, who manages a store in another city, has had Crohn's disease for years but has always worked satisfactorily.
12When Mr. Langburt discharged Ms. Marzano, he told her that it was because Kastners was dropping women's clothing in order to concentrate on men's and boys' wear, and that he wanted to have more male salespeople. He admitted that although it was true that Kastners had decided to stop selling women's wear, it was totally untrue that he wanted a more predominantly male sales staff. He gave Ms. Marzano that excuse, he said, in order to avoid hurting her unnecessarily. The evidence showed that Kastners continued to employ women sales staff, and in fact hired other women around the time of Ms. Marzano's termination and afterwards.
13Mr. Langburt was confronted with the fact that the record of employment form completed under his authority on December 1, 1988, for Employment and Immigration Canada, specified that "shortage of work" was the reason for Ms. Marzano's termination, and with the fact that he gave Ms. Marzano a letter of recommendation which spoke very favourably of her honesty, punctuality and attitude. His explanation, again, was that he did not want to hurt her, and he pointed out that the letter of recommendation said nothing about sales skills. As for the $.25 raise in September 1988, he described it as a minimal amount, which he decided to give her, again, to avoid hurting her.
14A second version of the reasons for Ms. Marzano's discharge was given in the testimony of Gary Bouchard, manager of Kastners, and Jill Stewart, manager of Image 1. Both of those witnesses expressed agreement with Mr. Langburt's unfavourable view of Ms. Marzano's sales skill. Ms. Stewart, in particular, was of the view that Ms. Marzano was not nearly aggressive enough in approaching customers and trying to persuade them to buy. That shortcoming was particularly serious at Image 1, Ms. Stewart said, because that store had only two employees on the floor at any time, and one of them was often occupied with other tasks.
15In contrast to Mr. Langburt, both Mr. Bouchard and Ms. Stewart testified that Ms. Marzano's sales performance was even worse after her return from hospital on November 7 than it had been previously. Both witnesses testified that she had less energy, that she appeared to be in pain or discomfort at times, and that she needed more breaks and more trips to the toilet. Curiously, however, both Mr. Bouchard and Ms. Stewart testified that at no time did they discuss Ms. Marzano's performance with Mr. Langburt, either on their initiative or his, and that they had no idea, until Mr. Langburt actually effected the discharge on November 21, that he intended to take any action against her.
16The third version of the events surrounding the discharge was Ms. Marzano's. As noted above, she claimed that she never received any criticism at all of her sales performance — not from Mr. Langburt, or Mr. Bouchard, or Ms. Stewart or anyone else — and that she never received an evaluation of any sort. That claim was supported by the testimony of all three witnesses for the respondents. Ms. Marzano was under the impression, from Mr. Langburt's cool response when she told him on November 7 that she had Crohn's disease, that the news of her illness caused him concerns which he did not have before. According to her testimony, she began to feel that other supervisors and co-workers shared those concerns, and that they feared the disease was contagious. Her belief that such a fear existed was due, she said, to the fact that on several occasions, after she had used the toilet, someone in a supervisory capacity — in particular, Kenny Langburt (Mr. Langburt's son) and Mr. Bouchard — came into the washroom immediately to check it out.
17I am quite satisfied, from the testimony of all three witnesses for the respondents, that no one thought Ms. Marzano's illness was contagious. However, Mr. Bouchard, whose testimony on this point was hesitant, admitted that he checked the washroom at least once after Ms. Marzano had left it, but he claimed that he only wanted to make sure she was not shoplifting — an explanation which is hard to accept in the circumstances.
THE ALLEGATION OF DISCRIMINATION ON THE GROUND OF SEX
18As noted above, when Mr. Langburt advised Ms. Marzano of her discharge on November 21, he gave her an admittedly false reason — that he wanted a more male sales staff. The allegation of sexual discrimination is based entirely on that statement by Mr. Langburt. However, the statement was quite transparently false, and Ms. Marzano herself appears never to have believed it. There were several female employees at Kastners at the time, including at least one who had been very recently hired. I can only conclude that the allegation of discrimination on the ground of sex is clearly unfounded.
19I should add that although counsel for the Commission did not press that allegation in his submission, I was somewhat surprised that it was not abandoned earlier. However, as Mr. Langburt brought the allegation of sexual discrimination upon himself by explicitly telling Ms. Marzano that he was discharging her because she was female, and as I do not know whether the respondents held to that explanation during the Commission's investigation of the complaint, I cannot fairly criticize the Commission for not having dropped the allegation earlier.
THE ALLEGATION OF DISCRIMINATION ON THE GROUND OF HANDICAP
20As also appears to have been the case in Decker v. K & G Pool Products Ltd.(1990), 1990 CanLII 12456 (BC HRT), 12 C.H.R.R. D/87 (B.C.H.R.C.), it was not disputed before me that Crohn's disease is a handicap or disability for the purpose of human rights legislation. I must now consider what role, if any, that disability played in Ms. Marzano's discharge, and whether any breach of the Code was established.
Was Ms. Marzano's Disability a Factor Which Contributed to Her Discharge?
21There is a burden on the complainant, in a case of this sort, to establish on a balance of probabilities that his or her disability was a factor — not necessarily the main factor, but a causal factor nonetheless — in the unfavourable treatment which she received from the respondents. Even if there were other, legitimate reasons for what the respondents did, the presence of a prohibited ground as a factor (even a subordinate factor) is enough to taint the respondents' actions and place them in breach of the Code.
22Before Ms. Marzano's illness arose, she had worked for the respondents for about a year and one-half, from March 1987 to September 1988. The evidence indicates that no one with any supervisory authority said anything unfavourable about her performance during that period, either to her or to anyone else, except for Mr. Langburt's comment to Mr. Doherty in September 1987 to the effect that she could "still improve on her sales skills, but that is not a problem." Then she became ill, was away from work for a month, and was discharged about two weeks after her return to work. Mr. Bouchard and Ms. Stewart both testified that her sales performance, which in their view was never very good, became worse after illness arose. These circumstances are enough to create a prima facie case that her illness was a reason for her discharge, and to shift to the respondents an evidentiary burden of proof that her illness had nothing at all to do with the decision to terminate her employment.
23Virtually the only evidence supporting the respondents' argument that Ms. Marzano's illness had nothing to do with her discharge consists of Mr. Langburt's testimony that he had made up his mind, at some unspecified point in the summer of 1988, before Ms. Marzano's illness appeared, that he would discharge her at some undetermined point in the future, and that the only reason he waited as long as he did was to avoid hurting her. In some circumstances, that sort of explanation might well be convincing. For example, if, before Ms. Marzano became ill, Mr. Langburt had criticized her performance or warned her about it, or even if he had made notations in his records or said something to others on his staff to the effect that she would definitely be discharged at some later time, I might have been able to accept that her illness played no part in the decision to terminate her.
24However, no circumstances of that sort were even mentioned in the evidence. All that is before me is Mr. Langburt's claim that Ms. Marzano had persistently fallen short, in unspecified ways, of the unarticulated standards which he expected his sales staff to meet, that his view of the innateness of sales skills gave him no hope that she could ever meet those standards, that he had therefore decided (in his own mind, without consulting or informing any of his supervisory or other staff) that he would fire her at some point in the future, that the only reason he put off doing so for some months was because he did not want to hurt her, and that when he finally did take action, the fact of her illness had nothing whatsoever to do with it.
25That explanation would be difficult to accept even if considered in isolation from the evidence as a whole. It may well be true, as counsel for the respondents submitted, that Mr. Langburt is not someone who is inclined to talk to staff members about the shortcomings of their co-workers, and that he is a kind and gentle person who treats his employees well. It is also true that nothing in the Human Rights Code requires an employer to take a consultative and communicative approach to staff matters rather than a paternalistic approach. However, discharge in this case came after the onset of a partially disabling illness, and it came out of the blue, with no forewarning of any sort to the affected employee or to anyone else. In these circumstances, the employer can and should be expected to provide more than the assertion that at some unspecified time before the illness arose, he had secretly decided that the employee would be fired at some indefinite point in the future.
26The unacceptability of that explanation is increased by the testimony of Mr. Bouchard and Ms. Stewart that Ms. Marzano's performance did in fact decline after she became ill. It is unlikely that Mr. Langburt was totally unaware that her illness was having such an effect, even if neither Mr. Bouchard nor Ms. Stewart said anything to him about it. In the circumstances, it is also unlikely that the illness played no part at all in her discharge on November 21, 1988.
27In sum, although the evidence does point toward the conclusion that Ms. Marzano's sales performance had previously been unsatisfactory in the eyes of Mr. Langburt and her other supervisors, and to the conclusion that her illness was thus by no means the only factor which led to her discharge, the evidence also satisfies me that Ms. Marzano's illness was seen by Mr. Langburt and her other supervisors as aggravating the pre-existing deficiencies in her performance. Whatever might have been in Mr. Langburt's innermost thoughts, the respondents chose not to use those deficiencies as a basis for terminating Ms. Marzano's employment, until a point in time when the deficiencies had been aggravated by her illness. In these circumstances, the only conclusion I can reach is that her illness did play a significant part of her discharge.
Do ss. 16(1) and 16(1a) of the Ontario Human Rights Code, 1981, Preclude a Finding that the Respondents were in Breach of the Code?
28Section 16(1) of the Code limits the effect of s. 4, by providing that it is not a breach of the Code to discriminate against an employee by reason of handicap if the particular handicap makes the employee "incapable of performing or fulfilling the essential duties or requirements" of the job. However, s. 16(1a) narrows that limitation, by imposing what is informally known as the "reasonable accommodation" requirement. More precisely, s. 16(1a) provides that a board of inquiry cannot find a person "incapable" within the meaning of s. 16(1) "unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any." Thus, even if Ms. Marzano's illness made her incapable of performing essential aspects of her job duties, the respondents were only entitled to discharge her if they could prove that they would incur undue hardship from any modifications which might enable her to carry out those aspects of her duties.
29I accept that effective performance of the sales function was an essential part of Ms. Marzano's duties. In light of the testimony of Mr. Bouchard and Ms. Stewart, I am also prepared to accept, though with some hesitation, that after Ms. Marzano's return to work on November 7, 1988, her illness made her incapable, within the meaning of s. 16(1), of carrying out her sales duties, in the form in which those duties were structured at the time. The remaining question is whether, in the words of s. 16(1a), the respondents have satisfied me that her needs could not have been "accommodated without undue hardship" to the respondents.
30Counsel for the respondents submitted that any attempt at accommodation would have been futile unless it consisted of hiring someone else in addition to Ms. Marzano, thereby burdening the respondents with the need to pay two people to get one persons' job done. I agree that whether or not the respondents happened to be able to afford to pay two salaries, such a result would have been extravagant and would not in any way have been required by the Code. However, I am not satisfied that substantially lesser measures would have had no prospect of enabling Ms. Marzano to perform at the level which is relevant for the purposes of this case — that is, at the level at which she performed before her illness arose. The partially debilitating effects of her illness consisted of a reduction in energy, some pain or discomfort, and a need to go to the toilet more often. As counsel for the Commission submitted, these effects do not appear, on the evidence, to have been severe enough to have made it clearly impossible or clearly impractical for her to perform at her previous level if she were provided with certain accommodative measures which were within the realm of reasonableness. Among such potential accommodative measures were moving Ms. Marzano to part-time status, allowing her to work split shifts, and scheduling her work only at Kastners and not at Image 1, where the fact that only two employees were on duty at any time meant that her need for relatively frequent breaks caused particular difficulties.
31When questioned about measures of that sort, the witnesses for the respondents characterized them all as impractical, for no apparent reason other than the fact that they had never before been used in the respondents' operations. Those witnesses frankly acknowledged that no forms of accommodation were even considered in Ms. Marzano's situation.
32Counsel for the Commission argued that the accommodation requirement in s. 16(1a) should be taken to include not only the substantive obligation to accommodate, but also the procedural obligation to think carefully about possible forms of accommodation. In support of that argument, counsel referred to a paper by M. David Lepofsky, entitled "The Duty to Accommodate: A Purposive Approach" (1992) Canadian Labour Law Journal (No. 1) 1. Mr. Lepofsky says, at pp. 13–14:
An assessment of an employer's efforts at accommodation must go beyond the employer's substantive reasons for not accommodating. It should also include an evaluation of the sufficiency of the process by which the employer reached its decision on accommodation. The duty to accommodate has both substantive and procedural components. The duty is to take steps, short of undue hardship, to accommodate the individual's needs. One requisite step is for the employer or other parties under a duty to accommodate to undertake a thorough and adequate process of inquiry and deliberations on the request for accommodation. If an employer simply rejects a request for accommodation out of hand, without giving the matter adequate thought and attention, including a thorough exploration of the possibilities, it can hardly be said to have taken adequate steps to accommodate.
33It would be unwise, in my view, to accept this argument in full and to hold that there is a separate procedural aspect to the duty to accommodate. Imposing a procedural duty on respondents to conduct a thorough inquiry into possible accommodative measures would run the risk of encouraging lengthy digressions, before the board of inquiry, on the internal deliberations of employers or other respondents. If a respondent can show that a particular form of accommodation cannot reasonably be demanded in the circumstances at hand, it should not also have to demonstrate how exhaustively it has considered the matter. Conversely, if a respondent cannot show that a particular form of accommodation is unreasonable in the circumstances, it should not be able to bolster its case by showing that it has considered the matter at great length. However, the failure of a respondent to consider any accommodative measures at all, in a situation where such measures might well have worked (as in the case now before me), can surely be taken as evidence of a failure to meet the duty to accommodate.
34It is impossible to be sure whether any accommodative measures would have worked in Ms. Marzano's situation. The effects of her illness, either in themselves or in combination with what appear to have been her questionable sales skills, might ultimately have led the respondents to the legitimate conclusion, after trying such measures, that they simply would not work. But we do not know, because no such measures were ever tried, and this is not a situation where it was clear in advance that any reasonable attempt at accommodation would be futile.
35I find that because the respondents have not satisfied the requirements of s. 16(1a) of the Code, s. 16(1) does not preclude them from being found in breach of s. 4(1). I conclude that the respondents breached s. 4(1) by discriminating against Ms. Marzano with respect to her employment because of handicap.
MITIGATION
36Ms. Marzano was out of work from the date when her discharge took effect — December 5, 1988 — until October 23, 1989, when she found another job. She submitted a document headed "Job Search 1988–89," listing about sixty job applications or inquiries which she made at about fifty Cornwall businesses between December 1988 and October 1989.
37Counsel for the respondents pointed out that although Ms. Marzano left their employ on December 5, 1988, she made only three applications or inquiries for jobs during the rest of the month of December. As that is the busiest month of the year in retail sales, which is where her job search was mostly concentrated, counsel argued that she should have looked much harder during that month. He also argued that she ought to have made considerably more than sixty inquiries over a ten-month period.
38Given Ms. Marzano's narrow and limited job market experience at the time of her discharge, given the somewhat debilitating effects of her illness, and given the discouragement commonly felt as a result of a discharge, I am not satisfied that she can be faulted for making only three inquiries between December 5 and the end of the month. Nor am I satisfied that sixty inquiries was an unreasonably small number for her to have made during the ten-month period in question.
REMEDY
39As noted above, Ms. Marzano was out of work from December 5, 1988, to October 23, 1989. For about four weeks in and around May 1989, she was unable to work because she had major surgery to alleviate her Crohn's disease. Subtracting those four weeks from her total period without work, the length of time for which she was both out of work and available for work was approximately twenty-nine weeks.
40Ms. Marzano is entitled to compensation for that twenty-nine-week period at her regular rate of pay. As counsel for the Commission pointed out, her regular rate was about $212 a week, making a total for the twenty-nine weeks of $6,148. She is also entitled to interest on that amount. I agree with the unchallenged submission of counsel for the Commission that in light of the prevailing rates of interest in the Ontario civil courts for the period in question, an appropriate rate is 11 percent per annum, calculated from the midpoint of the period during which she was out of work, which was May 14, 1989.
41Section 40(1)(b) of the Code authorizes an award of damages for mental anguish "where the infringement has been engaged in wilfully or recklessly." It would be unfair to describe the respondents' breach of the Code in those terms. However, many boards of inquiry have held that an infringement of the right against prohibited forms of discrimination should be compensated for by an award of general damages, under the power in s. 40(1)(b) to "direct the party [in breach] to make restitution, including monetary compensation, for loss arising out of the infringement . . ." The respondents' conduct here was not such as to justify a substantial award of general damages, but I think a small sum should be awarded, in light of the fact that the discharge was imposed unexpectedly in a context where the respondents had led Ms. Marzano to believe that her job was reasonably secure. Comparing the situation at hand with those in other recent board of inquiry decisions, I would conclude that general damages of $400 are appropriate.
ORDER
42I find that the respondents breached s. 4(1) of the Ontario Human Rights Code, 1981, by discriminating against the complainant in respect of her employment by reason of handicap — more specifically, by discharging her because of the effects of Crohn's disease. I also find that the respondents did not satisfy the requirements of s. 16(1a) of the Code with respect to accommodation of the complainant's needs, and that s. 16(1) therefore does not preclude the respondents from being in breach of s. 4(1). I find that the respondents did not discriminate against the complainant on the basis of sex.
43The respondents are ordered to pay to the complainant the sum of $6,148 as compensation for lost income, plus interest on that amount at 11 percent per annum from May 14, 1989, to the date of this decision. The respondents are also ordered to pay to the complainant general damages of $400.