I felt very uncomfortable with this case when I read the decision, and have agonized over this posting. Although I can empathize with the Complainant and his disability as a disabled person myself, I cannot condone what he did and what he failed to do, and even worse than that I cannot in any way justify what the Ontario Human Rights Tribunal put ADGA Group through for 6 years over this case. The purpose of this blog is to try and discern the truth out of what is happening, but to find that the truth is ignored or glossed over in favor of a commitment to an answer from the get go is really depressing.
You can read the entire tribunal decision along with many of the gory details on which it turned, at: www.canlii.org/en/on/onhrt/doc/2007/2007hrto34/2007hrto34.html
Here is the Reader's Digest version.
First a little background. The timing is September 2001.
Does anybody remember what happened on September 11, 2001 in New York City, the Pentagon, and the Pennsylvania countryside? Think tall buildings falling down. Think Terror. Think airplanes. Think "Our world will never be the same." Now think high alert for the US Military and for its friends and their military, particularly its closest neighbor. That would be us. Remember us. O Canada. Or is it Oh! Canada?
Canadian Military. Weapons Systems. Highly Sophisticated, and highly in demand. Failure is not an option. One of the things that makes these weapons systems work is computer software, and that software is as sophisticated as the weapons it drives and must be foolproof. Which in this particular instance means that it must be rigorously tested through all possibilities, and under a lot of time pressure and stress, in our post 9/11 world.
ADGA Group Consultants Inc. is a company that does that work for the Department of National Defence (DND). At the time in question, they derived about 65% of their corporate revenue from DND. One of their projects at that time was testing the software involved in weapons systems. How's that for being on the hot seat?
Enter Paul Lane a Quality Assurance Analyst, with a reasonable resume, but also a disability that he hid from ADGA during the interview process.
About 3 years prior to interviewing with ADGA, Mr. Lane was diagnosed with bipolar disorder, though he said he was aware of some of the signs of the condition prior to that time. Bipolar disorder is thought to occur in 1% of the population and maybe up to 6% to some degree. As a disability it is one that is triggered possibly circumstantially or by body chemistry or by both. Life can be very normal, and with little or no warning, at least in the control of the individual, it can become like a roller coaster ride that can only be taken alone, and must be very hard for loved ones to observe, and incredibly difficult for the bipolar individual. In Mr. Lane's case he later said that his roller coaster rides could last 3 days to 3 months.
But, Mr. Lane also knew that in the event that he were to enter into a pre-manic phase heading towards the manic phase, he needed someone to be watching out for him, and to bring into the picture someone he trusted, his wife or his doctor. Isolation would be his worst enemy. It is believed that an informed and trusted individual by the bipolar person can help the bipolar person reduce the length and depth of the manic and depressive phases, and possibly even avoid them.
He did not mention that he had bi-polar disorder. He later said he didn't mention it because he figured they wouldn't hire him. He was probably right. However, by keeping this secret, he set himself up for the big manic depressive episode that he had after his firing, because he was on his own.
ADGA had asked about sick days taken in the last year, and Mr. Lane was less than truthful about how many he had had in the previous year. He didn't think they had a right to ask that question. With the pressure they were under to get their work done for our military, why would they have a right to know if an employee they were going to hire was going to be dependable to show up for work regularly? Hmmm!!
As well, in his interview, there was a discussion about handling stress. In the Decision it was reported: "It was made clear during the course of the interview that the job could be stressful at times. Mr. Lane indicated that he was used to working under pressure and multi-tasking and that stress was an occupational hazard in the information technology sector." There was another opportunity for Mr. Lane to be open and honest with ADGA about his needs, but he wasn't.
As it turns out, bi-polar people don't always handle stress real well. It is one of the big triggers for episodes. They can handle it better if the people around them are aware and make accommodations for them, but it is still challenging, and when they handle it badly, it can be very bad for them, particularly, and in this case, it did not go well for ADGA either. Oh, and by the way, others certainly can't help if they don't know you need the help.
In 1998 and 1999, there was another stressful situation going on in the computer field, though no lives were probably in jeopardy. We called it Y2K. There was a drop dead date, and lots of work that had to be done. I was involved in that, and in my position in a public computer consulting company managed project managers and when there were not enough project managers managed projects myself. Everybody was stressed to the max, and we hired people to the best of our abilities, who could work to the best of theirs. However, we had no tolerance for people who were not honest with us, because they jeopardized our work and our relationships with our clients, and we terminated one person who lied to us and more than one incompetent along the way. We did not have one spare moment to babysit someone who was not able to get the job done we had hired them for and they had told us they could do.
So, Mr. Lane started work on Monday October 22, 2001, and had to spend time reading manuals and documentation for a while to get familiar with systems and so on. He did that but, he also spent some of his time socializing with others, and his behavior was on the edge of inappropriate from time to time. On the 24th, he met with a supervisor and alluded to a need for her to advise him if she felt his behavior was in any way inappropriate, but did not mention that he had bipolar disorder at that time.
Then on Friday, his 5th day of work, he met with the supervisor again, and this time was more open and honest with her. He pointed her to the Mayo Clinic site for its discussion on bipolar disorder, which frankly is bereft of any real information that would have helped someone from ADGA in working with Mr. Lane. He gave her a strategy of how to deal with him should he have pre-manic episodes or start into a manic episode. He told her that depending on how soon the condition was caught he could be out from 3 days to 3 months of work. But, he left feeling that he had given her a strategy that she could deal with this new revelation.
Canada looked at the time like it was heading off to war at any minute, and did deploy to the Far East as we all know. So, this company is testing weapons systems software under extreme pressure, and some new guy, just hired in off the street, goes to his boss, and says: "When I applied for the job, I lied. I did not tell you the truth about my ability to do the job. So now, you need to watch out for me, and here's how you can do it."
So, on Tuesday next they terminated him. But, they say they terminated him because his work effort was not there.
It is too bad that Mr. Lane has bipolar disorder, but there is no way on God's little green earth that he should have applied for a stressful job at ADGA in that time and space knowing the truth about bipolar and stress, and the work that had to be done. He had a manic then depressive episode that lasted 3 months when he got fired. Imagine what would have happened in the middle of a stressful test series when everybody was on edge, and so he started to feel things getting out of control and started to move towards a manic phase. He could have spun out of control in a way that was dangerous to himself and to those working with him, and ultimately to the project, and therefor to our troops who rely on the weapon systems being tested.
As I have said in other posts, I have a brain injury and am disabled. One of my challenges is that I can no longer handle stress very well, whereas previously I would have said that that stress tension held me together. But, I do well in one on one interview situations that do not last long, and I can present well during that time. If I were to try to return to work, and apply for jobs based on my technical skill set from prior to my accident, I could probably get myself hired, as long as I did what Mr. Lane did and ignored some important facts about my health.
From the experience of trying to return to my own job on a few occasions after this injury, I know that I would last for a few hours. Then I could go to my supervisor and say, by the way, I have a disability and I need you to accommodate me. If I read this case correctly, because I am disabled, they could not discriminate against me, and if they did, I could go to my local HRC, hitch up to the tax free gravy train, and my new employer would get treated like ADGA did, with similar penalties to the ones listed below.
The Tribunal held that ADGA had not accommodated the disability that Mr. Lane had misled them about, when they finally figured it out, and so they penalized them to the tune of (with my amendments for clarity and editorialisation:
- Damages for violation of Mr. Lanes' inherent right to be free from discrimination and to lie like a rug to the tune of $35,000
- Damages for reckless infliction of mental anguish, $10,000. The Ontario Human Rights Commission recklessly inflicted mental anguish on ADGA for free, except for the cost of ADGA's own legal fees.
- Special damages of about $34,300 for loss of Mr. Lane's salary because his rights were violated. These aren't special damages. They are extraordinary. If he had been truthful with them in the beginning, they never would have hired him because they would have known from the beginning that he could not do the job.
- Pre and Post judgement interest.
- ADGA had to retain at its own expense a qualified consultant to provide training to all employees, supervisors and managers on the obligations of employers under the Human Rights Code, particularly to disabled employees and more particularly those with mental disabilities, plus 3 other ways to rub their noses into this.
The Ontario HRC screwed ADGA over for 6 years making a discrimination case out of this, because they do that. This case sucks.