Purres v. London Athletic Club (South) Inc., 2012 HRTO 1758

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

June Purres Applicant

-and-

London Athletic Club (South) Inc. Respondent

DECISION

Adjudicator: Lorne Slotnick Date: September 19, 2012 Citation: 2012 HRTO 1758 Indexed as: Purres v. London Athletic Club (South) Inc.

APPEARANCES

June Purres, Applicant Christine Lundy, Representative

London Athletic Club (South) Inc., Respondent Bernie Olanski, Counsel

Introduction

1This is an Application under section 34 of the Human Rights Code R.S O. 1990. c. H. 19, as amended, (“the Code”). The Application claims discrimination on the basis of sex (pregnancy) in employment, and there is a related claim of discrimination on the basis of disability in employment that was raised at the hearing. The Application was filed against The Athletic Club. The respondent’s proper name is London Athletic Club (South) Inc., and the Application is ordered amended to reflect the correct name. The respondent is part of a chain of fitness centres operating under the name The Athletic Club.

2The Application was heard in London on July 9, 2012.

BACKGROUND

3The respondent operates a fitness centre in London. The applicant began work there in February, 2010, as a full-time customer service associate, mainly working behind the front counter. Her duties included greeting and assisting members, answering the phone, and handling some paperwork, as well as a few duties away from the counter including tidying the gym. While working at the counter, she was required to be standing.

4About a month after she began working for the respondent, the applicant found out she was pregnant. At around the same time, she testified, she began to experience swelling in her feet and pain in her legs. She saw her doctor, who provided a note dated April 16, 2010, saying she “should avoid prolonged standing and would benefit from being able to sit/stand alternatively.” While there was no medical evidence at the hearing that these physical problems were caused by the pregnancy, there appears to be no dispute that they coincided with the pregnancy, and stopped when the pregnancy ended with the birth of the applicant’s child in the fall of 2010.

5The applicant’s evidence is that she spoke to the manager of the club, Jim Pittam, about the situation soon after receiving the doctor’s note. She said she explained her problem with standing, and told Mr. Pittam she had the note. Her evidence is that Mr. Pittam said he did not need to see the note, but that putting a chair or stool behind the counter would not work because it would be in the way.

6The applicant said she did not know about her right to accommodation and did not want to get into an argument with her boss, so she accepted his answer and worked standing up for a few more weeks. However, her problems with her legs and feet only worsened, she said.

7Given what her manager had said, the applicant testified that she believed she had no choice but to ask for reduced hours. On May 12, 2010, she wrote to Christy Heckman, the respondent’s manager of operations and human resources, requesting part-time hours. Her written request did not give any reason, but she said she explained to Ms. Heckman the reason she was asking. She said she mentioned the doctor’s note to Ms. Heckman, but that Ms. Heckman did not seem interested. Ms. Heckman agreed in her evidence that she already knew the reason for the request. She testified that the applicant had asked to be allowed to sit and had made reference to the medical note, but did not provide it at the time.

8The applicant’s request for reduced hours was granted, and she was given two four-hour shifts per week, less than she felt she could handle and far less than the full-time hours she had been working. She said she was worried how the dramatically reduced hours would affect her Employment Insurance maternity benefits, and let other employees know she was willing to cover their shifts if necessary.

9After a week in June, 2010, during which she was not on the schedule at all – a miscommunication, the respondent says – the applicant called the Ministry of Labour and was eventually advised of her rights to accommodation. She said she went to speak to Ms. Heckman, requesting that her full-time hours be reinstated and that her physical limitations be accommodated. At this point, she provided the April medical note to Ms. Heckman – the first time it had been given to any representative of the respondent. The applicant said Ms. Heckman questioned whether she could really go back to full-time hours and said she would investigate.

10A few days later, the applicant was advised that her request for full-time hours had been turned down. However, the applicant was offered the opportunity to move from the counter to a nearby platform, which had a table and chair, to complete some paperwork anytime she was not busy at the counter during the eight hours a week she was working. Aside from the fact that she was not reinstated to full-time hours, the applicant described the accommodation provided as impractical since the counter was almost always busy and she could rarely just walk away.

11Asked what discussion occurred after the management of the respondent saw the medical note on June 23, the applicant replied that there was none. She said there was no attempt to explore whether she could continue working at the counter with a chair or stool, and the possibility of her working in another job at the centre was dismissed.

12The applicant continued working eight hours a week, and filed this Application in September, 2010. She began her pregnancy leave the next month, and returned to work in October, 2011, again with part-time hours. She resigned a month later.

13Mr. Pittam said there was no discussion with the applicant about accommodation until after she had asked to be scheduled to part-time hours. After the respondent saw the medical note in June, he said the management looked at putting a stool behind the counter for the applicant, but rejected the idea because there would not be enough room for others to pass by or to open cupboards and drawers.

14The evidence indicated that the counter is several metres long and about waist-high for most of its length, with a portion raised slightly higher, at about chest-height. There are usually two or three people working behind the counter, and it appears the higher portion is the busiest area of the counter. At that portion of the counter, a person sitting on an ordinary chair would not be high enough. Mr. Pittam testified that it was not safe to put a stool behind the counter because the applicant could be knocked off by other employees passing by in the narrow space behind. Ms. Heckman went further, testifying that a stool would be “extremely unsafe.” She said no one did a test of a stool because there was “no way it would be safe.”

15Each of the respondent’s witnesses was shown a promotional photo taken from the respondent’s Facebook page, showing 14 people behind the counter, some of them sitting with another person standing behind, and in one instance three people standing behind each other. Mr. Pittam said it was tough to squeeze them all in for the photo. He said he had never measured the space behind the counter, and did not test out a stool behind the counter because “I just knew a stool would not be particularly safe,” and an ordinary chair would be too low. In addition, he said, there would be no place to put a stool when the applicant wasn’t using it. Ms. Heckman agreed the photo showed people standing behind someone sitting at the counter, but echoed Mr. Pittam’s concerns about drawers and cupboards.

16Mr. Pittam said he felt the accommodation offered to the applicant – that she sit at the platform and do paperwork – was a “pretty good solution.” He said there was no limit on when she could sit there, and Ms. Heckman agreed. However, a July 7 memo to the applicant from Ms. Heckman summarizing the results of the respondent’s investigation states that “we have made an accommodation to allow you to sit up on the platform at non-busy times and when there is front desk support.” Asked about this discrepancy, Ms. Heckman said she was not precise enough in her memo. She said management would be available to work behind the counter if the applicant needed to be away, but she said she was not sure the applicant was ever told so.

17Asked how the respondent decided to reduce the applicant’s work hours from full-time to eight when her request did not specify how many hours she was requesting, Mr. Pittam said part-time employees generally work two shifts of four hours each. Ms. Heckman, however, said part-time status can range anywhere from four to 34 hours, and that the applicant had no complaints when she was put on two four-hour shifts.

PARTIES’ ARGUMENTS

18The applicant argues that she had a medical reason to ask for accommodation as a result of the physical symptoms she experienced at the time of her pregnancy. Instead of granting her the accommodation of being able to alternate between sitting and standing, the respondent ignored the request, forcing the applicant to ask for reduced hours in order to preserve her health. Later, the accommodation it did provide – allowing the applicant to move to the platform when she was not busy at the counter – was inadequate and decided unilaterally. The respondent thus ignored both the procedural and the substantive obligations to assess the type of accommodation required, the applicant argues. These violations of the Code, the applicant says, took place both at the time she first raised her physical problems in April 2010, and later in June, 2010 when she provided the medical note to her employer.

19Accommodation involves a discussion between an employer and an employee. The Supreme Court of Canada has accepted that the duty to accommodate has both a substantive and procedural component. See British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3 (“Meiorin”). The substantive duty to accommodate requires an employer to make modifications or provide the accommodation necessary (short of undue hardship) in order to allow an employee with Code-related needs to participate fully in the workplace. This may include modifying duties or hours or the workplace itself, up to the point of undue hardship.

20The procedural component requires that the respondent employer take steps to understand the employee’s disability-related needs and undertake an individualized investigation of potential accommodation measures to address these needs. In Lane v. ADGA Group Consultants Inc., 2007 HRTO 34, the Tribunal held that failure to meet the procedural dimensions of the duty to accommodate — the duty to inquire and assess — is a form of discrimination in itself because it denies the affected person the benefit of the prohibition against discrimination, and a proper search for accommodation.

21The duty to accommodate places obligations on the employee seeking accommodation as well. An employee who seeks workplace accommodation has a duty to co-operate in the accommodation process by providing the employer with a reasonable amount of information about his or her work restrictions and disability-related needs so that the employer can assess whether and how the employee’s needs may be accommodated without undue hardship.

22In addition to the Meiorin decision, the applicant referred me to British Columbia (Supt. of Motor Vehicles) v. British Columbia (Council of Human Rights) (“Grismer”), 1999 CanLII 646 (SCC), [1999] 3 S.C.R. 868, in which the Supreme Court of Canada said that when safety concerns are involved, the correct test is reasonable, not absolute, safety. The applicant also referred to the following decisions of this Tribunal: Williams v. Hudson’s Bay Company/Zellers, 2009 HRTO 2168; Graham v. 3022366 Canada Inc., 2011 HRTO 1470; and Vaid v. Freeman Formalwear, 2009 HRTO 2273.

23The applicant requests the Tribunal to compensate her for wages lost when her hours were reduced and for the resulting loss of Employment Insurance maternity and parental benefits during her pregnancy leave. She has also requested compensation of $35,000 pursuant to Section 45.2 of the Code for injury to her dignity, feelings and self-respect, as well as compensation of $5,000 for medical benefits she did not receive because she moved from full-time hours to part-time.

24The respondent argues that it provided reasonable accommodation to the applicant, first by granting her request to move to part-time hours, and then by allowing her to sit down during work hours when necessary. The respondent says the applicant was not forced to ask for reduced hours, but ended up regretting it after she was given what she wanted, and now blames the respondent for a decision she made herself. Increasing her hours is not required as part of the accommodation process; the respondent was required only to give her some time to sit during her work hours, which it did.

25The respondent also questions why the applicant did not give the medical note to anyone in the respondent’s management until June 23, more than two months after she received it, and asks me to reject the applicant’s evidence that Mr. Pittam was not interested in seeing the note.

DECISION

26For the reasons that follow, the Application is granted.

27I find the respondent’s theory that the applicant regretted her completely voluntary request for reduced hours is a very unlikely explanation for this Application. I accept the applicant’s explanation that she felt she had no alternative but to ask for reduced hours in order to preserve her health after the respondent ignored her request to be accommodated by being allowed to sit for some periods of time during her normal full-time work hours.

28The sections of the Code relevant to this application read as follows:

5(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.

10(1) In Part I and in this Part,

“disability” means,

(a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device.

10(2) The right to equal treatment without discrimination because of sex includes the right to equal treatment without discrimination because a woman is or may become pregnant.

17(1) A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of disability.

(2) No tribunal or court shall find a person incapable 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.

29While the Application itself raises only the issue of discrimination on the basis of sex, the evidence is that the situation involves a disability as defined by the Code that I accept arose from the applicant’s pregnancy. For the purposes of this decision, it does not matter whether the respondent discriminated because of disability or because of sex (pregnancy) since the duty to accommodate applies either way.

30In assessing the evidence, I found the applicant to be a credible witness. Her evidence, in my view, was not exaggerated. Her actions in response to what she said she was told by her employer are consistent with what I would expect an employee in that situation to do. . I therefore accept her evidence that she offered to show Mr. Pittam the medical note, but that he did not seem interested. I also accept her evidence that she felt forced into asking for reduced hours because standing for a full work day was simply too painful and there seemed to be no alternative. In addition, I accept the applicant’s testimony that she did not know her rights as a pregnant woman until after she made some phone calls in June when she was left off the schedule for a week. In my view, there appears to be no other reason that the applicant would have asked for reduced hours, other than her health reason. It is significant that she requested to return to full-time hours right after finding out about her right to accommodation.

31On the other hand, I find the respondent’s evidence to be flawed. First, Mr. Pittam seemed to suggest he had no discussion with the applicant about her physical issues until June. I do not accept this evidence, as he was her manager and she had a medical note in April; I find it more likely that the applicant is correct that she discussed the matter with Mr. Pittam in April. Second, Ms. Heckman testified that the accommodation provided was available to the applicant any time, whereas her memo to the applicant told her that she could sit down at the platform only when it was not busy at the counter and there were other employees there. Third, the respondent’s witnesses failed to explain why the applicant’s hours were reduced to eight when it was clear she felt capable of working more.

32Most important, however, is the evidence regarding the applicant’s request for accommodation. The respondent says putting a stool behind the counter raises a safety issue. This statement is made with no effort to even measure the space behind the counter or to test out a stool or a chair. Given the photos introduced in evidence showing people sitting behind the counter and others standing behind them, I find it very unlikely that any significant safety risk would have resulted from putting a stool behind the counter. In any event, I do not accept the respondent’s statement to that effect when it is made without ever testing the idea or exploring whether a bar-height chair might be a solution. In addition, it is clear in the evidence that the respondent offered the applicant no input whatsoever into the accommodation process. Once it had the medical note in June, it made a decision on its response without talking to the applicant, merely presenting her with its conclusion.

33In any event, the respondent’s assertion that it accommodated the applicant once it had the medical note misses the point. When the applicant first raised her physical issues with Mr. Pittam, he or someone else from management was obligated, as part of the procedural component of the duty to accommodate, to review the medical note and respond to it. The respondent knew in April that the applicant was pregnant and having some difficulties. Instead of discussing how to accommodate the situation, the respondent ignored it and did not ask to see the medical note, forcing the applicant to request shorter hours to preserve her health. Given these facts, the respondent cannot claim that the applicant’s request for fewer hours was purely voluntary and that it had no obligation to increase her hours as part of the accommodation in June. The applicant’s request for fewer hours was, I find, solely the result of the respondent’s failure to accommodate her medical issues, which I further find could have been done without any undue hardship, given that the required accommodation required only that the applicant temporarily be allowed to sit behind the counter when necessary. .

34Moreover, the respondent had a second chance to discharge its obligation to accommodate when the applicant went to Ms. Heckman requesting a reduction in hours. Ms. Heckman’s evidence is that she knew the reason the request was being made. However, instead of making inquiries about whether the medical problems could be accommodated, she simply processed the applicant’s request for reduced hours.

35A third opportunity to fulfil its obligation to accommodate was given to the respondent in June. At this point, the respondent had the medical note, and the applicant had requested reinstatement of her full-time hours. Instead, the respondent rejected the request and imposed what it felt was a reasonable accommodation without consulting the applicant.

36I find, then, that in its failure to discharge both its procedural and substantive duties to accommodate the applicant’s medical situation during her pregnancy, the respondent infringed her right under the Code to equal treatment with respect to employment without discrimination because of sex or disability, or both.

REMEDY

37The Tribunal’s remedial powers are contained in Section 45.2 of the Code, which reads as follows:

45.2 (1) On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:

1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.

2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.

3. An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.

(2) For greater certainty, an order under paragraph 3 of subsection (1),

(a) may direct a person to do anything with respect to future practices; and

(b) may be made even if no order under that paragraph was requested.

38The applicant has asked for compensation representing the difference between what she would have been paid had she retained full-time hours with accommodation, versus what she was actually paid. The evidence is that the applicant’s hourly wage was $10.25. I find this remedy is warranted, as the respondent’s failure to accommodate was directly responsible for this loss of income. I will therefore order payment of the difference between the applicant’s actual earnings, and the amount she would have earned working full-time, for the period from May 12, 2010, when she requested part-time hours, until the date she began her pregnancy leave.

39The applicant has also requested compensation arising from not being able to enrol in the respondent’s benefit plan as a part-time employee. Because she has provided no information on any actual losses, this request is refused.

40The applicant has requested compensation for the reduced Employment Insurance maternity and parental benefits resulting from her reduced income during the qualifying period. The evidence is that her benefits were $80 weekly. I find that the respondent is not liable for this loss, since this is not income she would have earned from the respondent had there been no discrimination. However, I will order the respondent to reissue the Record of Employment that was issued to the applicant at the time she left for her pregnancy leave, revised to reflect earnings as if she had worked full-time, in accordance with the order in paragraph 35 above. If she chooses, the applicant may use this revised Record of Employment to request a reassessment of her benefit level from the Employment Insurance programme.

41Finally, the applicant has requested an order for compensation for injury to dignity, feelings and self-respect. The Tribunal’s approach to this aspect of compensation was summarized in Arunachalam v. Best Buy Canada, 2010 HRTO 1880 at paragraphs: 46, 48, 49, 52, 53 & 54 as follows:

Monetary compensation for injury to dignity, feelings and self-respect recognizes that the injury to a person who experiences discrimination is more than just quantifiable financial losses, such as lost wages. The harm, for example, of being discriminatorily denied a service, an employment opportunity, or housing is not just the lost service, job or home but the harm of being treated with less dignity, as less worthy of concern and respect because of personal characteristics, and the consequent psychological effects. As noted by the Supreme Court of Canada in considering damages for breaches of the Canadian Charter of Rights and Freedoms in Vancouver (City) v. Ward, 2010 SCC 27, 2010 SCC 27 at para. 27:

Compensation focuses on the claimant’s personal loss: physical, psychological and pecuniary. To these types of loss must be added harm to the claimant’s intangible interests. In the public law damages context, courts have variously recognized this harm as distress, humiliation, embarrassment, and anxiety: Dunlea; Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971); Taunoa v. Attorney-General, [2007] NZSC 70, [2008] 1 N.Z.L.R. 429. Often the harm to intangible interests effected by a breach of rights will merge with psychological harm. But a resilient claimant whose intangible interests are harmed should not be precluded from recovering damages simply because she cannot prove a substantial psychological injury.

While principles from other areas of law may be useful analogies, the Tribunal’s approach to the exercise of its remedial discretion must be centered in the values of and statutory language in the Code. Code damages are meant to compensate, not punish, and Code violations, unlike some other areas of law, arise in a variety of very different social and legal contexts.

Damages for Code violations, as in other areas of law, must be fair to both the applicant and respondent(s), given the violations of the Code found: see Ward, supra, at para. 53. Damages under the Code must not be so low as to trivialize the social importance of the Code by effectively creating a license fee to discriminate (see Lane, supra at para. 152). At the same time, Code damages for intangible losses should not be “unduly high”: see Ward, supra at para. 54, referring to the approach of courts in other jurisdictions to damages for violations of constitutional rights. The Tribunal should be attentive to the possibility of ongoing inflation of damage awards for non-pecuniary losses that was recognized in the tort context in Andrews, supra in the 1970s. I do not agree with the applicant that an assumption that damage awards are “increasing” should affect the determination of awards.

I turn now to the relevant factors in determining the damages in a particular case. The Tribunal’s jurisprudence over the two years since the new damages provision took effect has primarily applied two criteria in making the global evaluation of the appropriate damages for injury to dignity, feelings and self-respect: the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination: see, in particular, Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940, 2009 HRTO 940 at para. 16.

The first criterion recognizes that injury to dignity, feelings, and self-respect is generally more serious depending, objectively, upon what occurred. For example, dismissal from employment for discriminatory reasons usually affects dignity more than a comment made on one occasion. Losing long-term employment because of discrimination is typically more harmful than losing a new job. The more prolonged, hurtful, and serious harassing comments are, the greater the injury to dignity, feelings and self-respect.

The second criterion recognizes the applicant’s particular experience in response to the discrimination. Damages will be generally at the high end of the relevant range when the applicant has experienced particular emotional difficulties as a result of the event, and when his or her particular circumstances make the effects particularly serious. Some of the relevant considerations in relation to this factor are discussed in Sanford v. Koop, 2005 HRTO 53, 2005 HRTO 53 at paras. 34-38.

42Here, the applicant testified that she felt belittled by the respondent’s actions, particularly when members of the fitness club questioned why she was sitting at the platform instead of working at the counter, and when members asked her why the respondent didn’t just allow her to sit at the counter. She said she felt she was not allowed to enjoy her pregnancy as much as she otherwise would have, because of the steep decline in income and the concern about how it would affect her EI maternity and parental benefits. I accept the applicant’s evidence, and I find she is not overstating the impact of the respondent’s actions. In my view, considering the seriousness of the conduct – particularly the refusal to take steps to accommodate at several opportunities – and its impact on this applicant, as set out above, my view is that an award of $10,000 in monetary compensation is appropriate.

43In addition, although it was not requested, I believe the management of the respondents would benefit from an explanation of their obligations under the Code. Cross-examination of the respondent witnesses revealed a clear lack of knowledge and understanding about the duty to accommodate under the Code. I will therefore order all employees of the respondent who perform supervisory or management functions to take the eLearning module “Human Rights 101” that is found on the Ontario Human Rights Commission’s website at www.ohrc.on.ca and confirm completion of same in writing to the applicant or her representative within 90 days of the date of this decision.

ORDER

44I therefore make the following orders:

1. The respondent will pay to the applicant an amount equal to the difference between the applicant’s actual earnings, and the amount she would have earned working full-time, for the period from May 12, 2010, until the date she began her pregnancy leave, less applicable statutory deductions, and subject to mitigation, if any, by the applicant. I will remain seized in the event of any dispute over this amount;

2. The respondent will reissue the Record of Employment issued at the time the applicant left for her pregnancy leave, revised to reflect earnings as if she had worked full-time, in accordance with the paragraph above;

3. The respondent will pay to the applicant monetary compensation for injury to dignity, feelings and self-respect of $10,000 without deductions;

4. All employees of the respondent who perform supervisory or management functions to take the eLearning module “Human Rights 101” that is found on the Ontario Human Rights Commission’s website at www.ohrc.on.ca and confirm completion of same in writing to the applicant or her representative within 90 days of the date of this decision; and

5. Post-judgment interest at a rate of 2.0% shall apply on the amounts above from 30 days following the date of this Decision.

Dated at Toronto, this 19th day of September, 2012.

”signed by”

Lorne Slotnick Member