In May, I explained the HRTO's decision in Garrie v. Janus Joan, involving a developmentally disabled employee who worked for many years for $1.25 or less per hour (to do the same job as non-disabled employees earning at least minimum wage) before being dismissed when the employer decided no longer to employ disabled employees.
And the Tribunal concluded that she was too late to complain about the discriminatory wage rate, though the dismissal was discriminatory, so awarded lost income...at a rate of $1.25 per hour.
The HRLSC subsequently took the case on and sought reconsideration, and the Tribunal released its decision this week.
Reconsideration is often sought and almost never granted. The Tribunal values finality, and is seldom prepared to go back and second-guess its earlier decisions. In this case, however, the Tribunal granted reconsideration.
There are arguments regarding whether or not it's proper to award a remedy which flagrantly ignores the minimum wage laws; however, I argued that the 'timeliness' issue was the bigger problem - concluding that the discriminatory wage right surrounded only the implementation of the wage rate ignored the reality that, throughout her employment, she was still being treated unequally. The latter problem, in my view, subsumes the former.
Strictly, the analysis is whether or not paying discriminatory wages is a series of discriminatory events, and there is some mixed case law on the point. But I think this falls clearly on the far side of any grey area. One can imagine a scenario where an employee was denied a promotion on discriminatory grounds, where it would be kind of grey whether or not the subsequent unequal treatment was a series of discriminatory events (I would say not - You're paying the promoted employee more because he was promoted at a discrete point in time; that generates its own remedies, but they don't reach indefinitely into the future.) A discriminatory raise is even trickier. But in this case, the difference in remuneration is so stark that it's clear that the right to equality is breached with every pay cheque.
The Tribunal did not reach a conclusion on remedy - it sounds like it will require another hearing. This is tricky, because of the rather 'all or nothing' aspect of the case: If the discriminatory wage rate is a series of events, then she is entitled to back pay going back a decade or so. Probably something in the six-digit range, though ODSP would require repayment out of that. If it isn't, then...not. It would be difficult to find a sound legal basis to justify some middle-ground solution where she get's back pay for only a reasonable period of time. (There also may be ongoing difficulties collecting.)
Edited on the afternoon of October 19, 2012:
The New Test
It seems appropriate to add some discussion regarding the specifics of the principles the Tribunal considered to find that this case regards a series of incidents:
(1) Is the most recent incident something that could independently establish a breach of the Code?
(2) Is the most recent incident a "fresh step", rather than simply a consequence flowing from the earlier breach?
(3) When were the effects of the discrimination manifest for the employee?
The Tribunal concluded that each time the disabled workers were paid less than their non-disabled co-workers, it was an incident of discrimination. Frankly, I question the language of the "fresh step". I think the decision is correct, but I still think it would be easy to characterize the facts in issue as lacking a "fresh step".
To my view, requiring a "fresh step", where the most recent incident could independently establish a Code breach, risks rendering injustice. It's the 'independence' factor which I think is most important. If you need to look to the original incident of discrimination in order to explain how your rights are still being breached, it isn't a series of events. So if you get denied a promotion because of your race, you can't bring an Application 5 years later on that basis alone to say "I'm getting paid less, because of my race, than that person who got the promotion" - the rather simple reality is that you're getting paid less because you didn't get the promotion. Without referencing that discriminatory competition five years earlier, it's absurd to even compare yourself to the person who got promoted.
Consider a scenario where a person with a physical disability, who is generally wheelchair bound and can barely walk, has to take a flight of stairs to his workstation. He asks for a workstation on the first floor, and the employer says no. So every day he has to leave his wheelchair behind, to struggle with the stairs. After a year passes that way, is the employer scot-free, absolved of any need to accommodate this continuing employee, because the "No" stands as the singular act of discrimination, with continuing effects? No, it seems to me that every day that the employer requires and expects the employee to take the stairs is a new incident of discrimination, even if it flows directly from an old refusal to accommodate. When explaining the discrimination, it is enough to say "I can barely walk, and my employer expects me to walk up the stairs every day, when they could easily give me a first-floor workstation." There is no need to appeal to Day 1 of the discrimination in order to make out a cogent case of discrimination.
Continuing causes of action are nothing new, and at common law the limitations clock will often be stalled until the cause of action ceases. (To use a simple example, consider a case where squatters began occupying your land. The trespass continues until they leave, and only at that time will a limitations period start running on an action in trespass.) I would argue that the Tribunal should use a similar analysis, for which no "fresh step" analysis would be required. Particularly since most of the relationships the Tribunal adjudicates between are ongoing and hierarchical in nature, there are compelling policy reasons for the Tribunal to be relatively open to consider ongoing discrimination.
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