Company paid employees with developmental disabilities lower wages over several years
A disabled employee’s pay that was below minimum wage constituted an ongoing series of incidents over several years, rather than a single instance of discrimination, the Ontario Human Rights Tribunal has ruled.
In the late 1990s, Janus Joan Inc., a manufacturing company in St. Catherines, Ont., hired some people with developmental disabilities to perform general labourer jobs. The disabled individuals did the same work as labourers without disabilities, except for tasks requiring fine skills. However, while the regular labourers were paid minimum wage or more, the disabled workers were initially paid $1 per hour, which later increased to $1.25 per hour.
Terri-Lynn Garrie was one of the disabled individuals employed by Janus Joan and worked 40 hours per week. Though Garrie’s parents were uneasy with the pay differential between disabled and abled workers, they didn’t complain because Garrie enjoyed her job and being around other people in the workplace. They also felt the company otherwise treated Garrie with respect.
In October and November 2009, the company terminated the employment of Garrie and other disabled workers, while keeping the regular labourers. Garrie and her parents filed a discrimination complaint with the tribunal.
The tribunal found Janus Joan discriminated against Garrie based on her disability and ordered the company to pay $15,000 for “the violation of her inherent right to be free from discrimination.” The company was also ordered to pay 12 months’ wages, which equaled $2,678.50 at Garrie’s hourly wage of $1.25. However, the tribunal disagreed with Garrie’s claim the discrimination was continued throughout her employment, finding the discrimination occurred when she was hired and too much time had passed — Ontario’s Human Rights Code stipulates that complaints must be made within one year of an incident or the last of a series of incidents of discrimination.
Garrie requested a reconsideration of the decision, arguing the wage discrimination continued throughout her employment and occurred up to her dismissal in October 2009. She also claimed the 12-month wage award should be calculated to reflect the non-discriminatory wage rate, not the discriminatory rate she was actually paid.
The tribunal looked to a Manitoba Court of Appeal decision that described a “continuing violation” as a series of separate violations “of the same character.” It also considered the Ontario Divisional Court’s differentiation between separate occurrences of discrimination that on their own are incidents and the continuing effects of a single occurrence.
The tribunal found ongoing discriminatory wage payments involved a fresh step of exchanging labour for pay during every pay period. Each time this step was taken, it constituted a contravention of the code and a separate occurrence of discrimination, said the tribunal. Therefore, it concluded the ongoing wage differential between Garrie and non-disabled labourers was a series of incidents under the code and the last incident of discrimination was Garrie’s last pay period — in November 2009, rather than her date of hiring in the late 1990s when her wage rate was set. This placed her complaint within the one-year limitation period stipulated under the code.
