Discrimination vs. employee aptitude

[Viking]

Example 5. A deaf person is not hired as a musician at the philharmonics, because, well, she is deaf.

http://en.wikipedia.org/wiki/Evelyn_Glennie

Deafness

Glennie has been profoundly deaf – meaning that she has some very limited hearing – since age 12. This does not inhibit her ability to perform at the international level. She regularly plays barefoot for both live performances and studio recordings, to better "feel" the music.[2]

Glennie contends that deafness is largely misunderstood by the public. She claims to have taught herself to hear with parts of her body other than her ears. In response to criticism from the media, Glennie published Hearing Essay

in which she personally discusses her condition.

Evelyn Glennie at Sesame Street

http://www.youtube.com/watch?v=jVw5KawqUIg&feature=fvst

[crazy canuck]

There was a case recently in the US where a woman was fired by KPMG (a big four accounting firm) for failing to pass her state chartered accountant exam twice in a row. She then found out (she didn't know it at the time) that she is a dyslexic and therefore was entitled to pass a special type on an exam instead. She sued KPMG and won 40,000 quid for "discrimination because of a disability" (even though neither her employer nor she knew at the time she was a dyslexic).

I must say that I struggle to find a principle at work here that would allow one to discern between a case of an actual discrimination and a situation that the employee just lacks the proper talent or aptitude to perform work.

The principle at work is that an employee cannot be terminated as a result of a disability unless the employer can show that they would face undue hardship if they were to attempt to accomodate the disability.  I didnt read the case but there must be more to the case then what you have reported.  She was fired because of her failing the test.   At some point she was diagnosed with the disability and she likely went back to her employer to say that she now knew the reason she failed the test and that it was related to her disability rather then her subject knowledge.  Obviously the industry is able to accomodate such disabilities because they have created another type of exam for this very purpose.

Disabilities being discovered after the fact are a growing phenomenon and they present some very tricky legal and factual issues.  I am defending a few such cases.

[DontSayBanana]

Disabilities being discovered after the fact are a growing phenomenon and they present some very tricky legal and factual issues.  I am defending a few such cases.

Tricky? Given prior knowledge of a disability, accommodation for that particular disability would be reasonable. Forcing employers to attempt to accommodate all possibility of a disability would not be "reasonable." If the diagnosis sets the legal recognition of the disability, how would it be any different from passing a law ex post facto?

[crazy canuck]

Tricky? Given prior knowledge of a disability, accommodation for that particular disability would be reasonable. Forcing employers to attempt to accommodate all possibility of a disability would not be "reasonable." If the diagnosis sets the legal recognition of the disability, how would it be any different from passing a law ex post facto?

I agree.  Its a line of argument I frequently use.  But Human Rights Commissions are becoming sypathetic to an argument that people should get another chance if the reason they failed can be attributed to a disability that could have been accomodated if it had been known at the time.

[The Brain]

Human Rights Commissions = fail.

[DontSayBanana]

I agree.  Its a line of argument I frequently use.  But Human Rights Commissions are becoming sypathetic to an argument that people should get another chance if the reason they failed can be attributed to a disability that could have been accomodated if it had been known at the time.

I completely understand the desire to revisit a point of failure, but a couple of things stick out:

1.

Bid failed her first exam and was given permission by the firm to defer her retake so that a dyslexia assessment could be obtained from the ICAEW. She was warned by the firm if she failed she would have to be dismissed.

The wording makes it sound as though the company raised a concern of dyslexia, and she waived her right to the alternative testing methods. That not only sounds like a failure to show discriminatory intent, but also that her termination was a result of her voluntary waiver, and that she's trying to hold the company responsible for her actions.

[crazy canuck]

I agree.  Its a line of argument I frequently use.  But Human Rights Commissions are becoming sypathetic to an argument that people should get another chance if the reason they failed can be attributed to a disability that could have been accomodated if it had been known at the time.

I completely understand the desire to revisit a point of failure, but a couple of things stick out:

1.

Bid failed her first exam and was given permission by the firm to defer her retake so that a dyslexia assessment could be obtained from the ICAEW. She was warned by the firm if she failed she would have to be dismissed.

The wording makes it sound as though the company raised a concern of dyslexia, and she waived her right to the alternative testing methods. That not only sounds like a failure to show discriminatory intent, but also that her termination was a result of her voluntary waiver, and that she's trying to hold the company responsible for her actions.

That actually helps me understand why it was found to be descriminatory.  Sounds like the company was put on notice that a disability may well exist.  An employee cannot waive their right to Human Rights Proection.  In those circumstances the company ought to have waited for the outcome of the disability testing before making their decision to terminate.   In other words this case becomes very different on its facts from what Marti first said.  Both the employee and the employer knew that a disability might exist but the employer terminated anyway.

I dont know what descriminatory intent is.  That concept is not found in our law.  Intent is not a necessary element.  Someone can be very well meaning but still descriminate in breach of the Act.

[DontSayBanana]

That actually helps me understand why it was found to be descriminatory.  Sounds like the company was put on notice that a disability may well exist.  An employee cannot waive their right to Human Rights Proection.  In those circumstances the company ought to have waited for the outcome of the disability testing before making their decision to terminate.   In other words this case becomes very different on its facts from what Marti first said.  Both the employee and the employer knew that a disability might exist but the employer terminated anyway.

I dont know what descriminatory intent is.  That concept is not found in our law.  Intent is not a necessary element.  Someone can be very well meaning but still descriminate in breach of the Act.

Except that the employer is not qualified to make a diagnosis, but simply raised a concern. I'm thinking there was no winning with this one, and that if she had been placed on leave and asked to confirm or eliminate a diagnosis before re-sitting the exam, she probably would have brought a case based on the suspension. I'm not convinced the company's responsibility to the employee was so great as to insist on obtaining a diagnosis against her will.

[crazy canuck]

Except that the employer is not qualified to make a diagnosis, but simply raised a concern. I'm thinking there was no winning with this one, and that if she had been placed on leave and asked to confirm or eliminate a diagnosis before re-sitting the exam, she probably would have brought a case based on the suspension. I'm not convinced the company's responsibility to the employee was so great as to insist on obtaining a diagnosis against her will.

I agree the employer is not qualified.  That is why they should have waited for the testing for the disability.  But giving the employee the utlimatum they were putting themselves into the position of already deciding that her prior exam failure was not related to the suspected disability.  That was their mistake.

There was no reason to suspend either.  There appears to have been no reason to push the issue.  Testing for the disability would have been relatively quick and then decisions could have been made based on those tests.  In the meantime she could have continued doing what she had been doing for the company.  It is beginning to sound like they just jumped the gun.

Regarding the against her will part, if the evidence had been that they had terminated because the employee refused to be assessed then they would have had a much better case.  That kind of defence almost always works.  Instead of pass the test or we will fire you they would have been much better off telling her to take the disability assessment.  If she refused then they would have grounds to terminate without engaging the human rights issue because it is impossible to accomodate a person when they will not cooperate with the diagnosis of that disability.

[The Brain]

Why use two accounting exams? Just use the "dyslexic" one for all since it apparently is sufficient to determine competence.

[Neil]

Human Rights Commissions = fail.

Don't worry.  They'll be purged soon enough.

[Ed Anger]

Example 4. A Muslim person is not hired for a job at a fashion shop, because her Muslim attire is not consistent with a dress code.

Sounds like Abercrombie and Fitch.

[alfred russel]

Except that the employer is not qualified to make a diagnosis, but simply raised a concern. I'm thinking there was no winning with this one, and that if she had been placed on leave and asked to confirm or eliminate a diagnosis before re-sitting the exam, she probably would have brought a case based on the suspension. I'm not convinced the company's responsibility to the employee was so great as to insist on obtaining a diagnosis against her will.

I agree the employer is not qualified.  That is why they should have waited for the testing for the disability.  But giving the employee the utlimatum they were putting themselves into the position of already deciding that her prior exam failure was not related to the suspected disability.  That was their mistake.

There was no reason to suspend either.  There appears to have been no reason to push the issue.  Testing for the disability would have been relatively quick and then decisions could have been made based on those tests.  In the meantime she could have continued doing what she had been doing for the company.  It is beginning to sound like they just jumped the gun.

Regarding the against her will part, if the evidence had been that they had terminated because the employee refused to be assessed then they would have had a much better case.  That kind of defence almost always works.  Instead of pass the test or we will fire you they would have been much better off telling her to take the disability assessment.  If she refused then they would have grounds to terminate without engaging the human rights issue because it is impossible to accomodate a person when they will not cooperate with the diagnosis of that disability.

They have a policy of when you have to pass the exam, but they wouldn't have fired her if she was a superstar--they would have given her more time. At the end of the day they fired her because they didn't want her (which isn't a suprise considering she was in a demanding time sensitive profession requiring long hours at points in the year--if she couldn't get through the exam without extra time, she probably couldn't get through her work efficiently either). 40k is not a lot to get rid of a professional you don't want to continue to employ.

[crazy canuck]

40k is not a lot to get rid of a professional you don't want to continue to employ.

I agree.

[Martinus]

Example 4. A Muslim person is not hired for a job at a fashion shop, because her Muslim attire is not consistent with a dress code.

Sounds like Abercrombie and Fitch.

Indeed. I for one wouldn't shop at a A&F store that had these veiled harridans.