For over a decade, Terri-Lynn Garrie and her mother worked together at Janus Joan Inc. Garrie’s mother knew that Garrie, a woman with developmental disabilities, was earning a mere $1.00 to $1.25 an hour, but she never complained. Garrie enjoyed her job and Garrie’s mother did not know that it is illegal to pay people with developmental disabilities less than non-disabled people who perform the same job.
Garrie and the other general labourers at Janus Joan Inc. with development disabilities earned a training honorarium of $1.00 to $1.25 per hour. Garrie’s co-workers who performed the substantially the same job, but who do not have developmental disabilities, earned the statutory minimum wage or higher.
When Garrie’s employment was terminated, the illegality of Janus Joan Inc.’s differential pay practice was brought to the attention of Garrie’s mother and she initiated a human rights complaint on her daughter’s behalf.
Janus Joan Inc. attempted to justify its differential pay practice. It claimed that general labourers with developmental disabilities were volunteer trainees. Additionally, it asserted that the disabled workers were paid a specified amount so that they could still qualify for monthly Ontario Disability Support Payments.
The Human Rights Tribunal of Ontario rejected the claims of Janus Joan Inc. and found that this differential pay practice is discriminatory for three reasons.
The first reason is that the Tribunal found that the sole reason for the differential pay was the workers’ developmental disability because all of the general labourers performed substantially the same job. The Tribunal explained that in 1986, Ontario’s Employment Standards Act was amended so that it is unlawful to pay a person with disabilities less than the minimum wage. This change occurred because the Ontario government had views similar the following statement submitted by Garrie’s lawyer:
“The minimum wage represents a public policy statement about the worth of human labour in our society. Underpayment of the Applicant represents a profound comment about the value of her labour relative to that of the non-disabled people working alongside her.”
Second, the court found that Janus Joan Inc.’s classification of these disabled workers as “trainees” hurt its case even more. The general labourers with and without developmental disabilities were all performing substantially similar work. By labeling those with disabilities as trainees Janus Joan Inc. was further insulting the dignity of those workers and further disadvantaging them.
The final reason is that Janus Joan Inc. did not withhold EI premiums or CPP contributions from the general labourers with developmental disabilities. Garrie was unable to receive EI after Janus Joan Inc. terminated her employment and she will receive lower CPP payments during retirement. The non-disabled general labourers had EI premiums withheld and had CPP contributions made and as a result will not suffer the same disadvantage as the disabled general labourers.
The Tribunal ordered that Janus Joan Inc. compensate Garrie for the lost income she would have earned if she were paid the statutory minimum wage, for the violation of her inherent right to be free from discrimination and for the injury to her dignity, feelings and self-respect. In addition, Janus Joan Inc. was ordered to stop its differential pay practice.
The Tribunal awarded Garrie the following damages:
(a) $161,737.87, less and statutory deductions and less any amount claimed for the period in which Garrie began working at a new job, for compensation for lost income;
(b) pre-judgment interest from the date that each discriminatory payment became due; and
(c) $25,000 for compensation of the violation of Garrie’s right to be free from discrimination and for injury to dignity, feelings and self-respect.
The Tribunal also recommended that the Human Rights Commission determine how common differential pay practices of this nature are in Ontario and, if needed, suggest solutions to the Ontario government.
A main purpose of the Employment Standards Act is to protect the inherently vulnerable position of an employee. Employees who are developmentally disabled are in need of even greater protection. Hopefully this decision is a first step to spreading more awareness of the rights under the Employment Standards Act to people with disabilities and their families.