An employment law blog for employers and employees.
Published by Sean Bawden of Kelly Santini LLP.
T. 613.238.6321 | sbawden@kellysantini.com | www.kellysantini.com

Saturday, 12 January 2013

Being Reprimanded for Having a Disability Stinks



Can you be fired for farting? The question may sound childish and silly, but the answer can be serious.


In a story in the January 11th edition of the Ottawa Citizen, US agency reprimands worker with flatulence problem, then takes it back, it was reported that:
A U.S. government agency did more than wrinkle its nose at an employee's flatulence problem, issuing an official reprimand after months of malodors. But the agency said Friday that it has since retracted the rebuke.
The reprimand letter, which runs four pages and is dated Dec. 10, charges the employee of the Social Security Administration, which administers pensions, with "conduct unbecoming a federal employee" and "creating a hostile work environment" because of the repeated gas passing.
Social Security Administration spokesman Mark Hinkle said Friday in a two-sentence email that the reprimand was rescinded a week after it was issued "when senior management became aware of the reprimand" and that the agency, which has its headquarters in a suburb outside of Baltimore, could not comment further because of "privacy concerns." He declined to say the employee's gender or where the person worked.
Later, after a conversation with a deputy division director, the employee blamed the problem on lactose intolerance and offered to purchase Gas-X. The deputy division director also asked that the employee investigate a medical explanation.
"He asked that you check with your doctor to see if there are other options to help you address your flatulence and that you could not pass gas indefinitely and continue to disrupt the work place," the letter says.
The employee submitted information about medical conditions but nothing indicating "that you would have uncontrollable flatulence," according to the letter.
"It is my belief that you can control this condition," the letter writer says.
The employee's flatulent episodes were then documented by date and time over a three-month period beginning in September. The letter does not explain how the record was made.
The letter can be viewed here: http://www.thesmokinggun.com/file/ssa-farting-letter?page=0

As the report demonstrates, the story starts out with a humorous enough proposition, but then quickly turns into something more pathetic and serious.

The case brings to the fore the very serious, issue of the duty to accommodate an employee’s disability.

The Ontario Human Rights Code guarantees the right to equal protection in the workplace without discrimination on account of a “disability.” “Disability” has been given a very broad interpretation and would undoubtedly cover this situation.

As set out by the Supreme Court of Canada in its decision in Hydro-Quebec, 2008 SCC 43, an employer has a duty to attempt to accommodate an employee, not to the point of impossibility, but to the point of undue hardship.

Returning to the unfortunate individual in the United States, the question is: had this individual been fired (and it would appear that s/he has no longer even been reprimanded), and had s/he worked in Ontario, would it have been a violation of the employee’s rights as afforded by the Human Rights Code?

The first question is whether having an odour-free workplace is a bona fides operational requirement of the employer. While there are certainly issues related to accommodating those with odour sensitivities to such things as perfumes, it is questionable whether an employer can impose a prohibition against flatulence.

The second question would be whether the employer made efforts to accommodate this employee to the point of undue hardship. And, given the Supreme Court of Canada’s recent decision on the subject, considered in this blog in School Board Learns Lesson in Accommodation, in addition to making efforts the employer would also have to show that it considered all of its reasonable options. While offering to purchase Gas-X is a gesture, I am not sure if it goes far enough.

To me it would appear that the issue is not so much that this individual has a flatulence problem, but rather that other people are exposed to the effects of that problem. The legal question I would have is: how can this person carry out their responsibilities without exposing others to the effects of his or her flatulence?

Again, the question sounds a little funny; but, it really is not when one considers what is at stake.

If you are an Ontario employer and are faced with such a situation the prudent first step would be to retain experienced legal counsel. The employment lawyers at Kelly Santini LLP have considerable experience in such cases and would be happy to be of service to you.

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As always, everyone’s situation is different.  The above is not intended to be legal advice for any particular situation and it is always prudent to seek professional legal advice before taking any decisions on one’s own case.

Sean Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP. He tweets from @SeanBawden.

Editing by: Kathleen Whitfield Fletcher | Words Write | kwfletcher@live.com

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