Plight of exploited disabled workers brought to light with Ontario woman’s damage award

·National Affairs Contributor
Newfoundland and Labrador's minimum wage is set to increase in October next year. (CBC)

A law allowing employers to pay disabled workers less than the minimum wage looks like an example of good intentions gone awry.

On the one hand, it's intended to encourage companies to hire the disabled, giving them gainful employment which enhances their self-worth. On the other, it opens the door to firms that may see a potential for profitable exploitation of a group that has few options.

Companies like Janus Joan Inc.

The St. Catharines, Ont., packaging outfit and its owner, Stacey Szuch, have been hit with a whopping $187,000 penalty by the Ontario Human Rights Tribunal for discriminating against 45-year-old Terri-Lynn Garrie.

The woman, who is described as intellectually challenged, was paid $1.25 an hour – well below minimum wage – for years, then fired.

According to the Toronto Star, the damage award includes about $142,000 in lost wages, almost $20,000 in additional lost income for discriminatory termination and $25,000 for "injury to her dignity, feelings and self-respect."

"I find that the organization respondent’s discriminatory treatment of the applicant was serious," tribunal adjudicator Ken Bhattacharjee said in his decision.

"The respondent terminated her employment because of her disability after she had worked for them for approximately 10 years. I accept her testimony that she became upset, sad, mad, and depressed.

"I also accept the applicant’s mother’s testimony that the applicant was devastated because her job was her livelihood and social life, that she no longer had anything to occupy her during the day, and that she became reclusive. I also find that, as a person with a developmental disability, the applicant was vulnerable."

[ Related: New facility at McMaster designed to help disabled workers ]

Garrie was among several people with developmental disabilities who had been working at Janus Joan since the late 1990s, packing wine bottles. They worked alongside other employees who were paid at least the minimum wage.

She was fired in October 2009 after 10 years with the company, ostensibly because she said she was unhappy with her work. A month later, Janus Joan let the rest of the disabled workers go.

Garrie's initial complaint to the tribunal, filed by on her behalf by her mother, was rejected because it exceeded the one-year time window from the start of her employment in 1999, when she was paid $1 an hour. But it was later reassessed after the tribunal concluded it amounted to an ongoing wage discrimination up to her dismissal.

Neither the company nor Szuch participated in the hearing, though she sent a letter stating Garrie was not an employee but a "trainee," who was paid an honorarium so her provincial disability payment would not be clawed back.

Szuch also claimed her mother and sister were aware of the arrangement. Her mother said they did not complain because Garrie loved her job.

In its editorial on the decision, the Law Times said administrators of Ontario's disability support program should have been aware Garrie of the situation because she reported her income to bureaucrats.

Bhattacharjee, in his ruling, dismissed Szuch's excuses as irrelevant, saying the company was still responsible for upholding non-discrimination provisions of the Human Rights Code.

The Star said the ruling is believed to be the first time any tribunal has looked at the issue of discriminatory pay for people with intellectual disabilities.

The tribunal decision also asks the Ontario Human Rights Commission to investigate if the practice of paying less than minimum wage is widespread and, if so, to advise the province on how to stop it, the Star said.

Chief Commissioner Barbara Hall 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 told the Star.

A 1986 change to Ontario's Employment Standards Act allows employers to pay people with disabilities the minimum wage.

[ Related: Job grant program change may slice support for people with disabilities: group ]

Similar federal legislation in the United States has come under scrutiny over allegations Goodwill Industries has used it to exploit its disabled workforce, Forbes Magazine reported last year.

Garrie's experience is probably more common that most people think, Chris Beesley of Community Living Ontario, which advocates for adults with intellectual disabilities, told the Star.

“And shining a light on why it is wrong is probably more valuable that just this one outcome,” he said.

The unemployment rate for the intellectually disabled is about 75 per cent, Beesley said, despite data showing that for certain jobs they're statistically better workers than everyone else. They are more motivated, miss fewer days, have fewer accidents and provide better customer service, he told the Star.

“People with intellectual disabilities are underemployed because they are undervalued,” he said. “And when they are employed they are underpaid.”

Garrie told the Star she was thrilled with the tribunal's ruling.

“I’m very happy (the case) is over and done with,” she said. “I don’t want to see this happen again to anyone else."

Whether Garrie gets to collect her damage award is another matter.

Bhattacharjee noted in his ruling Janus Joan closed its doors not long after the complaint was filed and Szuch had declared personal bankruptcy. Shortly after, however, a new company with a slightly different name and the same co-ordinates had started up. Garrie's mother claims it's a dodge to avoid legal liability.

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