Bipolar disorder no excuse for dismissal
By Cindy Moser
An information technology firm that fired a new employee after learning he had bipolar disorder has been ordered to pay almost $80,000 in damages by the Human Rights Tribunal of Ontario.
The tribunal found that the firm had violated the employee’s right to equal treatment and freedom from discrimination by failing to investigate the nature of the illness with a view to accommodation.
In 1998, Ottawa-based Paul Lane was between jobs as a systems analyst and being treated for depression with Prozac. During this treatment Lane entered a manic episode (which can be triggered by Prozac), and was hospitalized for three weeks. This is when the bipolar disorder was diagnosed.
When fit to work again, Lane found a job with Siemens Telecom Innovation Centre. He didn’t tell his employer he suffered from bipolar disorder, but after he was absent for six weeks in 1999 due to another manic episode, he was fired. Lane complained to the Ontario Human Rights Commission, and the complaint was settled through mediation.
In October 1999, Lane got a job as a quality assurance specialist with Linmor Technologies. Again, Lane didn’t initially tell the company about his bipolar disorder, but eventually told his manager about his condition and, as a preventive measure, about symptoms to watch for. Later on, the manager did notice telltale symptoms, intervened, and Lane got medical help. He was off for three weeks, and returned. His next performance review was favourable. Nonetheless, in June 2001 Lane was laid off as part of a workforce downsizing that was common to much of the information technology sector in Ottawa at that time.
In August 2001, Lane applied for a job as senior test analyst at ADGA Group Consultants, an information technology design and engineering company. During the interview, he was told that the job could be stressful at times, and Lane responded that he was used to multi-tasking and working under pressure, as these were common to the business.
At no point before ADGA hired him did Lane indicate that he had bipolar disorder. On the application form, he misrepresented the number of sick days he had taken at his previous job for fear that he would not be hired.
Lane got the job. The company saw in him an experienced quality analyst, with the necessary technical background and supervisory experience.
Employee reveals condition
Four days into his job, Lane told his supervisor everything. He explained bipolar disorder and offered to provide her with further information. He alerted her to his workplace history, saying that stress in the form of abuse by fellow workers had been a trigger in the past. He also told her to contact his wife or doctor if she noticed any untoward behaviour or other indicators that he might be moving towards a manic episode. He also mentioned he might need to take time off to prevent a pre-manic stage from deteriorating into full-blown mania.
Lane left the meeting with the uncomfortable feeling that sharing the information had been a mistake. The supervisor was, indeed, concerned by what she heard, especially about
- stress as a trigger because Lane’s was a stressful job, and
- the potential need for time off, because time off was a problem during deadline periods.
Early the following week, Lane and his supervisor met again. She said she had to take the information to her boss, the program manager, because of the potential that his condition might necessitate time off. During Lane’s meeting with his supervisor, he told her about a death threat he had heard that morning. The supervisor became concerned that Lane was exhibiting some of the very symptoms—e.g., paranoia—that he had told her about, but she did not contact anyone, as he had asked her to do. It turned out Lane was in a pre-manic phase.
Later that day, Lane’s supervisor met with the program manager and expressed concerns about Lane’s ability to handle the stress of the position and whether this might trigger an episode. The program manager concluded that Lane was not up to the job and the company could not afford for him to be away for long periods. He decided Lane should be fired, which he believed could be done without impediment because Lane was still working within the first 90 days of his probationary contract.
Lane was called to a meeting with his supervisor and program manager, and fired. It was a civilized meeting without anger or accusations, although Lane later said he was simply in shock. Lane asked about another position, but was told nothing suitable was available. At no time during the meeting was there any specific discussion about the nature of Lane’s condition and his specific needs related to it. Nor was there any suggestion that the supervisor and program manager take time to gather more information about bipolar disorder and Lane’s condition, or about the company’s legal obligations towards someone with a mental disability.
After his firing, things went downhill for Lane. Due in part to the job loss, he went into a full-blown manic episode and was admitted to hospital for 12 days. He then went into a severe depression and was unable to seek work until at least February 2002, and then was unable to find anything. This led to further periods of depression. The family’s financial position deteriorated, and eventually Lane and his wife (and child) were forced to sell their house. Subsequently, Lane and his wife separated, although they remained on good terms and his wife continued to provide emotional and other support. Lane has not found another full-time job suited to his qualifications.
Company pays for mental anguish
Lane complained to the Ontario Human Rights Commission that he had been discriminated against on the basis of his mental disability, and won. First, the adjudicator from the Human Rights Tribunal of Ontario rejected ADGA’s argument that it had a right to dismiss Lane once it discovered he had lied about his bipolar condition during the hiring process.
Lane went through considerable anguish every time he had to decide whether to reveal his condition to an employer because of his rightly held perception that to reveal this information during a job interview “would trigger in employers a stereotypical reaction to someone with a mental illness, leading to a decision not to hire,” the adjudicator said. As a result, the adjudicator was “not prepared to find that ADGA could rely on Lane’s lying as an independent basis for dismissal and thereby avoid having to account for its treatment of him as someone exhibiting the symptoms of bipolar disorder in the workplace.”
Lane was fully capable of performing the essential duties of his job, at least when not heading towards or in full-blown mania or depression. Therefore, the company had no grounds to dismiss Lane on the basis that he was unqualified. Indeed, the company had a duty to determine if it could accommodate Lane’s disability up to the point of undue hardship.
The firm failed in any meaningful way to assess if it could accommodate Lane. True, the adjudicator said, the company already had reason to be concerned about Lane’s behaviour during the short time he had been with the company. “However, to acknowledge the reality and legitimacy of these concerns does not amount to acceptance of the proposition that ADGA could not accommodate Lane without undue hardship,” the adjudicator continued. “It was necessary to evaluate the concerns on the basis of an appropriate assessment of Lane’s situation and not just the information that the [supervisor and program manager] had at that point. The procedural dimensions of the duty to accommodate required those responsible to engage in a fuller exploration of the nature of bipolar disorder and Lane’s own situation, and to form a better-informed prognosis of the likely impact of his condition in the workplace.”
If the company had made such enquiries, it would have learned many things—about bipolar disorder (see below) and about Lane in particular—that might have allowed it to continue employing Lane. Instead, it rushed to judgment and fired him. This was discriminatory, the adjudicator concluded.
The adjudicator awarded Lane special damages of just over $34,000 for loss of salary, general damages of $35,000, and an extra $10,000 for the “reckless” infliction of mental anguish—as well as interest on all of these amounts. “Given the hopes that Lane had built up about the prospects of returning to work and his excitement about the kind of work and environment at ADGA, the summary way in which he was dealt with amounted to a huge affront to his sense of self-worth,” he said. “While this was a case of essentially one incident—the termination—it was not only precipitate and unaccompanied by any assessment of Lane’s condition, but also callous to the extent of its consequences in the sense that nothing was done on the day to ensure that Lane, in his pre-manic condition, reached his home safely and sought medical attention.”
The adjudicator also ordered “public interest” remedies. Namely, ADGA must retain a qualified consultant to provide training to all employers, supervisors and managers on human rights obligations and, in particular, accommodating people with disabilities, focusing on mental health issues. It must also, within three months, establish and post a written anti-discrimination policy that addresses discrimination on the ground of disability within three months.
Ontario Human Rights Chief Commissioner Barbara Hall calls this “a precedent-setting case for mental health disability in Ontario.” She says “employers need to realize the risks in summarily dismissing someone with conditions like bipolar disorder,” and that “the duty to accommodate is a reality.”
ADGA is appealing the decision to the Ontario Divisional Court.
About bipolar disorder and the workplace
The tribunal heard testimony from two expert witnesses: Philip Upshall, national executive director of the Mood Disorders Society of Canada (and himself bipolar), and Dr. Julio Arboledo-Florez, head of the Department of Psychiatry in the Faculty of Medicine at Queen’s University. Here’s what these experts said about bipolar disorder, particularly in the workplace.
- Bipolar disorder (formerly known as manic depressive illness) is a mental illness that has, at its polar opposites, severe depression at one end and extreme manifestations of manic behaviour at the other. Serious episodes at either end of the spectrum will almost inevitably necessitate hospitalization and lengthy periods off work.
- The illness can often be managed by medication, by early intervention when there are signs of increasing depression or manic behaviour, and more generally by the presence of educated, caring and supportive environments at both home and work. If the signs of an episode are detected early enough, a rapid rebalancing of medication may result in the person affected losing only one to three days of work.
- A number of conditions contribute to the difficulties that those with bipolar disorder may experience in the workplace. Primarily, a lack of awareness of the nature of the disorder, the conditions that contribute to the onset of episodes, and the warning signs of the need for early intervention.
- Some see this as part of a more general pattern of stigmatization of those with mental illness and differential treatment in the workplace between those with mental as opposed to physical illnesses. This situation also has a tendency to create a vicious circle in the form of a great reluctance on the part of those with bipolar disorder to reveal their condition to prospective employers and, if they are then hired, to inform employers so that risk minimization steps can be taken.
- An employee’s situation should not be assessed from the perspective of false stereotypes, such as those with a bipolar condition are in almost every instance unreliable, prone to inappropriate behaviour to the point of violence, and incapable of working to normal job demands.
Based on an article that first appeared in Back to Work. Cindy Moser is the editor of the monthly newsletter, which is dedicated to workplace disability management and return to work, and published by Toronto-based Business Information Group. Cindy can be reached at email@example.com.
How IAPA can help
Attend Management Strategies for Mental Health Issues in the Workplace and other healthy workplace sessions at Health & Safety Canada 2008, IAPA’s national conference and trade show.
Progressing from commitment to action
At a leadership summit convened by IAPA in spring 2007, speakers from a number of corporate giants—Alcan, Magna, Imperial Oil and others—discussed the value of OHS as a gateway to organizational excellence. On April 22, at Leadership Summit 2008: From Commitment to Action, CEOs and other organizational leaders will explore how to put this precept into practice. Specifically, participants will probe ways to
- gain a Board of Directors’ commitment to health and safety while balancing its main directive to increase shareholder value
- operationalize health and safety across the organization and develop it as a competitive advantage
- extend health and safety into the supply chain, as a means of elevating standards in quality, performance, productivity, as well as promoting corporate social responsibility.
Each topic will be the subject of a “knowledge café” facilitated by the Conference Board of Canada, IAPA’s event co-presenter.
Among the invited speakers are Marc Neeb, Executive Vice President, Global Human Resources, Magna International Inc., and Dan Ariely, the Alfred P. Sloan Professor of Behavioural Economics at MIT. Ariely is the summit’s luncheon keynote.
As a behavioural economist, Ariely has made a study of how and when we make decisions. His work has produced surprising insights—key learnings for anyone intent on effecting organizational change.
Among his recent activities, Ariely has just returned from moderating a session on sustainability at the World Economic Forum in Davos, Switzerland. HarperCollins is publishing his new book, Predictably Irrational: The Hidden Forces That Shape Our Decisions, this month. It’s expected to rival the success of the business blockbuster Freakonomics.
Leadership Summit 2008: From Commitment to Action takes place during Health & Safety Canada 2008, IAPA’s national conference and trade show.
February 29: Ontario releases final piece of MSD package
This year’s International RSI Awareness Day, February 29, is the official release date for Ontario’s MSD Prevention Toolbox. Along with a guideline and resource manual released in 2007, the toolbox was developed by members of the Occupational Health and Safety Council of Ontario (OHSCO) as part of a broader prevention strategy for musculoskeletal disorders (MSDs).
The MSD Prevention Guideline for Ontario provides workplaces with a common framework for MSD prevention no matter the type of industry or workplace, says Jonathan Tyson, project manager of OHSCO’s MSD Prevention Strategy. “The framework has been developed so that it can, and should, be integrated into an existing health and safety system or process. The guideline stresses that the type of hazards that result in MSDs should be treated the same as any other workplace hazard.”
More detailed information on how to implement the MSD prevention framework appears in the companion Resource Manual for the MSD Prevention Guideline for Ontario. For each step in the framework, says Tyson, the manual suggests possible activities a workplace might implement. “This manual will be of most use when a workplace is just starting to implement an MSD prevention process, or is looking to improve an existing process.”
The third component in the package, the MSD Prevention Toolbox, will serve as a support document for the guideline and resource manual. Those tools previously released in a draft version of the toolbox have already demonstrated their usefulness in the MSD prevention process. However, they are not considered to be all-inclusive, but rather as a sample of the many different types of tools that may be used.
“Just like your toolbox at home,” says IAPA ergonomics specialist Ivan Szlapetis. “You have more than one tool in it. Sometimes, a task calls for a Phillips screwdriver, other times, a Robertson. Simply put, you can't use one screwdriver for everything.” Szlapetis is a member of the OHSCO sub-committee that drafted the three documents.
The MSD Prevention Toolbox is divided into three segments:
- Toolbox A contains qualitative hazard recognition tools for workplaces just getting started
- Toolbox B contains more specialized, quantitative tools for workplaces with a more advanced ergonomics program
- Toolbox C contains a description of a wide variety of assessment tools.
Given the economic and social costs of MSDs, it is intended that the guideline, resource manual and toolbox will provide workplaces with the impetus and resources to address MSDs without Ministry of Labour intervention.
How IAPA can help
- Download the MSD Prevention Guideline for Ontario and the Resource Manual for the MSD Prevention Guideline for Ontario.
- Check out IAPA’s array of ergonomics-related training, products, and free downloads.
Two of our newest training offerings are Nuts and Bolts of Implementing an MSD Prevention Program and Back Safety 101 (DVD and video formats).
- Ask an ergonomics specialist how IAPA consulting and assessments can help you reduce MSDs. For instance, IAPA ergonomics specialists can assist you with
Attend MSD and other ergonomics-related sessions at Health & Safety Canada 2008, IAPA’s national conference and trade show.
- ergonomics assessments: office and industrial
- physical demands analyses (PDAs)
- job task analyses
How SAD are you?
Many Canadians feel the winter blues at one point or another. Grey skies, cold temperatures, and endless commutes due to poor weather conditions can leave us listless, distracted and apathetic.
But some of us feel the blues worse than others, and can slip into clinical depression. We may have strong feelings of hopelessness and worthlessness, severe insomnia, and suicidal thoughts or behaviours.
Research suggests that one possible cause of wintertime depression, known as Seasonal Affective Disorder (SAD), is a lower level of serotonin and a higher level of melatonin. Our brains adjust the release of each substance in response to shorter days and longer nights.
Like winter, the onset of SAD is often gradual. This can make it harder to diagnose. However, people with SAD often respond well to treatment. Formal treatment can take the form of
- light therapy, in which the body is exposed to very bright light for regular, extended periods of time
- counselling, such as cognitive behaviour therapy, which explores negative feelings and beliefs that cause depression, and replaces them with more positive thoughts, and
- antidepressants, especially when other forms of therapy are not effective.
A workplace approach
Almost one year ago, Bruce Power, Canada’s first privately held nuclear generating facility, implemented a light therapy treatment program available to all employees. Under the program, Bruce Power installed 30 lamps that provide intense artificial illumination. The lamps are located in most buildings on Bruce Power’s 2,300-acre site so that workers have ready, convenient access.
The idea of offering light therapy arose during collective bargaining. In response to a union suggestion that the utility fund employee purchase of lamps, the utility instead proposed that it install lamps on site. The topic was thoroughly researched by a staff physician before the facility decided to proceed.
Concurrently, the therapy had been discussed and supported by a shift issues team. Comprising a staff nurse, and representatives from organized labour and management, the team looks at ways to improve shift workers’ quality of life and productivity. Night shift workers are the most frequent users of the lamps.
All 30 installations are designed to protect user privacy, says Norie Dickson, a Bruce Power health services section manager. They also offer workspace. Users can catch up on paperwork and reading while benefiting from the exposure to intense light. Recommended exposure time: 20 to 30 minutes per session.
“The lamps have been proved to be at least 75% effective at treating SAD,” says Dickson. “If people have SAD, lighting therapy will help alleviate it. The therapy will also help them sustain their productivity, so it’s good for the people who use them, and it’s good for the company.”
An individual approach
For anyone feeling the weight of winter on his or her shoulders, a number of steps can help ease the burden. For example:
- Invite the light in. Make your environment sunnier and brighter. Open blinds, trim tree branches that block sunlight, position mirrors to capture and reflect daylight light, add skylights…
- Go out and find the light. On sunny days, even in winter, spend time outside. Go for a walk, or just find a protected spot in which to sit and soak up the sun.
- Exercise regularly. Relieve stress and anxiety, and feel better about yourself, through physical exercise.
- Be good to yourself. Ensure you get enough rest, eat properly and have time to relax.
- Regulate your body clock. For example, protect your circadian rhythms by avoiding bright light in the hours before you go to sleep.
- Cut down on stimulants, such as alcohol and caffeine. They can play havoc on your internal clock.
- Learn how to manage stress better. If the stress is caused by outside factors, talk to those who can help you make changes.
- Stay busy and connected. Keep yourself occupied, and spend time with people whose company you enjoy.
- Get away, preferably somewhere sunny and warm.
- Talk to your personal physician. Together you can explore your symptoms and review treatment options. If you set up a treatment plan (e.g., light therapy, counselling, medication), stick to it.
This article drew on a number of sources, including the Mayo Clinic and WarrenShepell, an international EAP provider.
IAPA volunteer receives WSIB Award
Bill Bowman, a manager in the Workplace Safety and Insurance Board’s Hamilton, ON office, recently received the board’s 2007 Fred Troina Memorial Health and Safety Award.
Board president and CEO Jill Hutcheon describes Bill as “an exceptional contributor to our organization's occupational health and safety system.”
In addition to serving as co-chair of the Hamilton office’s joint health and safety committee and an active member of the board’s central committee since 2004, Bill
- has served as an IAPA volunteer for the past 10 years, receiving in April 2007 IAPA's Provincial Volunteer Award of Merit
- conducted over 200 information sessions with secondary school students through the Young Worker Awareness Program
- become a member of the Threads of Life Speaker's Bureau
- co-chaired the Hamilton Steps for Life Walk, a Threads of Life fundraiser in 2007
- coordinated last year's NAOSH and Healthy Workplace Week events at the Hamilton office
- revised the Hamilton office's Emergency Response Plan in 2007
- coordinated activities for the Hamilton office's Take Your Kids to Work Day since 2000, and
- coordinated the Hamilton office's Workwell sessions since 2005 to assist local employers.
The health and safety award was created in 2005 to honour Fred Troina, a board employee known throughout the organization for his passion and dedication to both his job and to promoting health and safety at the board.