Clues were there for employer as reason for ill employee’s decline in performance
A British Columbia company’s application to dismiss a discrimination complaint by a terminated employee with anorexia nervosa has been denied by the BC Human Rights Tribunal.
The worker was hired by the company in May 2014 following a successful university career in which she finished third in her class. The worker had very good references from previous employers and the company quickly found out she was able to work very well independently and with very good results.
However, things changed in the latter part of 2014 when the worker developed anorexia nervosa, an eating disorder characterized by obsessive attempts to lose weight, often to the point of starvation.
As a result, the worker became malnourished and began to have trouble understanding, processing and analyzing information — especially spoken information. Typically of those suffering from anorexia, the worker didn’t realize what was happening to her and she found her difficulties understanding to be embarrassing.
The worker’s illness worsened, affecting her analytical skills, social sensitivity and cognitive functioning. Her family tried to support her, but the worker remained in denial about her condition, despite the fact people were noticing how thin she had become.
By early 2015, the worker’s supervisor was concerned with the worker’s performance issues and excessive overtime. The HR advisor met with the supervisor and the worker and discussed concerns about the worker’s ability to work independently, show initiative, and communicate appropriately — the worker had sent a high volume of emails seeking guidance that she should have been able to find herself.
The worker said she had difficulty with work from several different project managers and high-pressure deadlines, and she asked questions to make sure she got things right.
She said no one had said she took too long or her work was poor quality, but she had difficulty focusing and understanding instructions at times. She didn’t mention any disability to her supervisor or the human resources advisor.
In March 2015, the worker was assigned to a job in the field and she found it more difficult to find food, given the restrictions her illness imposed on her and the time constraints of the job. She was seen wearing personal protective equipment and clothing that were too large for her — a safety concern — and was observed limping , though she said she was fine when asked.
On one occasion, she attended a dinner with colleagues and a client where she loudly complained that her dinner was served last. Because of this incident, the human resources advisor and the worker’s supervisor felt it wouldn’t be appropriate for the worker to continue working at that site.
After one particular day in the field, the worker was limping with swelling in her face and body, so the company sent her home to obtain a medical note of her fitness to work.
However, the worker was soon hospitalized and diagnosed with severe protein deficiency and an infection. The worker still didn’t believe she suffered from anorexia nervosa and wanted to return to work.
The worker was approved by a third-party benefits administrator for short-term disability benefits, which she received until early June 2015. During this time, the administrator researched anorexia nervosa and told the HR advisor the condition should be mostly physical and shouldn’t cause behavioural changes.
Near the end of the worker’s short-term disability benefits, her doctor expressed concern about her ability to work at a high intellectual level because of her low weight and cognitive impairment. The worker’s family also felt she wasn’t ready to go back to work, but the worker was determined.
The administrator informed the company that the worker was cleared to return to work on a graduated return-to-work plan starting with two- to-three-day stretches during the month of June.
However, when the worker came back, she felt ostracized by others. This caused her stress and she started to lose weight again.
The HR advisor met with the worker and asked if she was fit to return and if she required any accommodation.
The worker said she was fit to come back and wasn’t suffering from a disability that required accommodation. In late July, after the worker returned from vacation, she was given a letter to sign that said she agreed with the benefits administrator’s assessment that she was “fully fit to return” and she was not suffering from “a disability impacting (her) ability to work” or needed accommodation.
The worker felt pressured and worried she might be fired if she didn’t sign it, so she did.
Soon after, the worker’s supervisor told the HR advisor that the worker “was not capable of performing her job duties at a level that would meet expectations.” On Aug. 12, the company informed the worker that her employment was terminated effective Aug. 26 because she “was not a good fit.”
After her termination, the worker realized her impairments probably played a role in her termination. On Aug. 19, she wrote a letter to her supervisor requesting a leave of absence instead of termination so she could seek treatment for her disability. She indicated she had returned to work too quickly and needed six months to one year off for intensive treatment.
The company said it would not reconsider its decision.
The worker applied for short-term disability benefits under the company plan and was assessed to be disabled.
She continued to receive benefits after her termination as it was company practice to pay benefits that began while an employee was employed even after the termination.
The worker filed a human rights complaint for discrimination regarding employment on the basis of mental and physical disability. The company denied any discrimination and filed an application for the tribunal to dismiss the complaint because it had no reasonable prospect of succeeding.
Tribunal weighs in
The tribunal noted that the worker didn’t disclose a disability to the company, but for a good chunk of time, she herself wasn’t aware of it — typical for sufferers of anorexia nervosa. However, there were signs that should have tipped off the company that something was wrong — the worker was a high performer who worked well independently and could figure things out on her own, but suddenly this was not the case.
Since her supervisor and others at work saw her nearly every day, they were in a position to notice the changes in the worker’s physical appearance and cognitive abilities, said the tribunal.
Other clues that something was wrong included the worker’s short-term disability leave from March to June 2015, during which time the worker was hospitalized, along with the benefits administrator’s mention of the worker’s diagnosis, and the human resources advisor specifically asking if the worker needed accommodation.
“It is clear to me that there are facts that could, if proven at a hearing, support a finding that the firm had direct knowledge of the employee’s disability,” said the tribunal.
Regardless of the previous clues, the worker discussed her disability with her supervisor following her notice of termination and the fact that it made her a different and less effective person, said the tribunal. However, the company refused to change its decision and didn’t provide an explanation other than the worker was a poor fit.
The tribunal determined there was sufficient evidence to support a finding that the company knew or ought to have known about the worker’s disability, and the disability — and its effects on the worker — was a factor in her termination.
The British Columbia tribunal denied the company’s application to dismiss the complaint and encouraged it to find a resolution through mediation before moving to a hearing.
For more information see:
• The Employee v. The Firm, 2017 CarswellBC 2943 (B.C. Human Rights Trib.).
Jeffrey Smith is the editor of Canadian Employment Law Today. For more information, visit www.employmentlawtoday.com.