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Disabled woman wins discriminatory pay case at Ontario Human Rights Tribunal
An intellectually disabled St. Catharines woman who was paid just $1.25 an hour as a labourer at a packaging company for 10 years has won her discrimination case before Ontario’s Human Rights Tribunal.
In the ground-breaking ruling filed last week, the tribunal awarded Terri-Lynn Garrie $142,124 in lost wages, $19,613 in lost income for discriminatory termination and $25,000 in compensation for “injury to her dignity, feelings and self respect.”
It also urges the province’s human rights commission to determine if the practice of paying less than minimum wage is widespread, and if so, to advise the province on how to stop it.
The ruling is believed to be the first time any tribunal or court has looked at the issue of discriminatory pay for people with intellectual disabilities.
“I find that, objectively, the respondent’s discriminatory pay practice was a serious violation of the (Ontario Human Rights) Code,” tribunal vice-chair Ken Bhattacharjee wrote in his Feb. 28 ruling.
“Minimum wage legislation . . . tells us something about how we perceive self-worth and human worth,” he said, quoting University of Alberta law professor Gerald Robertson.
“What minimum wage legislation says is: Regardless of who you are, regardless of what you do for a job, regardless of how well you do that job, we think that this is the minimum any self-respecting human being should receive if they are working.”
Garrie was “thrilled” with the decision.
“I’m very happy (the case) is over and done with,” said the 45-year-old woman, who “loved” her job packaging wine bottles for export at Janus Joan Inc.
“I don’t want to see this happen again to anyone else,” Garrie said in a telephone interview from her parents’ home in St. Catharines.
Janus Joan Inc. owner Stacey Szuch refused to participate in three separate tribunal proceedings since the case began in 2009.
The Star was unable to reach Szuch by phone, and an email address the tribunal has used to communicate with her is no longer working. She did not respond to a hand-delivered letter left at her St. Catharines home.
Garrie was hired in 1999 at the packaging company, where she and up to 10 other intellectually disabled adults worked alongside able-bodied employees doing essentially the same general labour tasks, the tribunal heard.
While the able-bodied workers earned minimum wage or more, Garrie and the other disabled adults were paid between $1 and $1.25 an hour, the tribunal found.
Garrie’s mother, Marjorie Tibbs, who launched the discrimination complaint on her daughter’s behalf, said she knew about the wage disparity but assumed it was legal, since Szuch had a history of working with disabled people.
But when her daughter was fired unexpectedly in October 2009, Tibbs launched a human-rights complaint, alleging Szuch let her go because she was disabled. Tibbs also complained about the unequal pay.
“Terri-Lynn loved that job. She rarely missed a day of work in 10 years,” Tibbs said. “She loved getting up in the morning. She would make her lunch and stand at the bus stop. She loved having something to do.”
Apart from working during Christmas at Walmart in 2011 and 2012, Garrie hasn’t worked since, Tibbs noted.
Shortly after Tibbs launched the case, Szuch filed for bankruptcy and told the tribunal her business had closed.
Although she didn’t participate in any of the hearings, Szuch sent a letter to the tribunal saying Garrie was a “trainee” and not an employee. As a trainee, she was paid an honorarium amounting to about $50 a week so she could continue to receive Ontario Disability Support Program payments without triggering claw-backs, Bhattacharjee notes in his ruling.
Szuch’s letter also says Garrie’s mother and sister, who also worked for the company briefly, were aware of the honorarium, as was Garrie’s ODSP case worker.
“If Janus Joan Inc. discriminated against the applicant, then the applicant’s mother, the social services agencies, the applicant’s support workers and the (ODSP) office were all co-discriminators,” Szuch wrote.
Even if this were so, Bhattacharjee noted, you cannot contract out of the Human Rights Code.
Despite Szuch’s personal bankruptcy, Garrie’s lawyer, Mindy Noble of the Human Rights Legal Support Centre, said the centre will “make every effort to try to collect.”
Barbara Hall, chief commissioner for the Ontario Human Rights Commission, welcomed the ruling.
“The fact that we intervened in the first place shows we are really concerned about this issue and the seriousness with which the tribunal took it is very important,” she said.
Ontario amended a provision in the Employment Standards Act in 1986 that allowed employers to pay people with disabilities less than minimum wage.
But Garrie’s experience is “probably more common that we know,” said Chris Beesley, of Community Living Ontario, which serves about 12,000 adults in the province with intellectual disabilities.
“And shining a light on why it is wrong is probably more valuable that just this one outcome,” he said.
“People with intellectual disabilities are underemployed because they are undervalued,” he said. “And when they are employed they are underpaid.”
People with intellectual disabilities are still very capable, he said. And for certain jobs they are statistically better workers than the rest of the population. They are more motivated, have fewer accidents, miss fewer days of work and provide better customer service, he said.
About 75 per cent of the province’s 66,000 intellectually disabled adults are unemployed, and 16,000 are on waiting lists for support, Beesley added.
Laurie Monsebraaten Social justice reporter