The British Columbia Human Rights Tribunal has awarded an employer to pay three months of wage loss and $20,000 for injury to dignity to an “outstanding employee” who lost work after his employer learned of his HIV positive status. CLAS lawyer Lindsay Waddell represented the complainant before the Tribunal.

The complainant worked as a cleaner for Ultra Care Cleaning Systems Ltd. for a number of years. During that time, he had a positive relationship with Ultra Care’s owner who described the complainant as an outstanding and exemplary employee. After several years of employment with an excellent attendance record, the complainant fell ill and was hospitalized. While in the hospital, a co-worker and friend inadvertently disclosed to Ultra Care’s owner that the complainant was HIV positive. When the complainant was discharged from the hospital and advised Ultra Care that he was ready to return to work, he was told that no work was available. The complainant made several other inquiries about returning to work to no avail. Eventually, he contacted Ultra Care to request that, if he was not going to be returned to work, he be issued an ROE so that he could apply for employment insurance benefits. The Tribunal found that the complainant made this request out of desperation resulting from the respondents’ failure to return him to work. As a result of the respondents’ failure to return him to work, the complainant lost his apartment of 10 years and suffered physical illness.

The Tribunal found that there was no shortage of work in and around the time that the complainant was ready to return to work. Rather, the Tribunal found that Ultra Care’s owner, Mr. Woronuk, was concerned, upon learning of the complainant’s HIV positive status, about whether he had any obligations in relation to having an HIV positive employee. Mr. Woronuk contacted several agencies including Worksafe BC, the Employment Standards Branch and the BC Human Rights Tribunal and learned that his only obligation was to keep the complainant’s HIV positive status. He did not have an obligation to tell other employees, contractors or customers about his employee’s HIV positive status, as he first believed he might.

The respondents effectively admitted that the complainant’s HIV positive status was at least part of the reason why the complainant was not returned to work. Not surprisingly, the Tribunal found that the complainant had made out a prima facie case of discrimination in employment on the basis of physical disability. The respondents were not able to justify the discrimination.

In considering the appropriate amount of an award for injury to dignity, the Tribunal noted the following on the subject on the nature of the discrimination at issue:

[196] Mr. Malin argues that:

People with HIV continue to face a number of significant barriers in society today. Most of these barriers have their genesis, not in the virus itself, but in prejudice, perception and ignorance. Mr. Woronuk’s treatment of Mr. Malin is precisely the sort of prejudice the Tribunal is aimed at eradicating. It is based on fear and misconception, although it may not always come with ill intent…

[197] This is well put and I adopt it. The core of discriminatory conduct is based on stereotypic perceptions unfounded on fact that exclude persons with characteristics protected by the Code from full participation in BC society.

The Tribunal’s full Reasons for Decision can be found here.