Tribunal dismisses perceived learning disability claim, despite insults claimants endured from employer

The tribunal did find the claimant was subjected to a poisoned work environment.
The tribunal did find the claimant was subjected to a poisoned work environment. Photo Credit: Shutterstock

Can a person make a discrimination complaint to the Human Rights Tribunal of Ontario for a “perceived” disability?

In Krajcik v. Haugens BBQ Ltd., an application was filed under s. 34(5) of the Human Rights Code of Ontario on behalf of the claimant Joe Krajcik by his uncle Mike Krajcik alleging that the claimant was allegedly discriminated against on the basis of “disability/perceived.”

In his application, Krajcik stated he finished Grade 12 with assistance in some subjects, but that he had generally struggled through school.

Krajcik had been employed by Haugens from 2002 until July 2013. He was employed as a prep cook. He had initially worked for the restaurant in the 1990s when his parents had co-owed it. When he went back to work at Haugens in 2002, only his aunt and uncle were still co-owners. The uncle is a relative of the current owners, and Krajcik has known the current owners for a very long time.

Krajcik’s uncle and aunt left Haugens in 2008. In February 2009, Steve Tzountzouris, one of the current owners of the restaurant, hired a new supervisor.

When Tzountzouris introduced Krajcik introduced to the new supervisor, he referred to Krajcik as “stupid” and when Krajcik asked whether it’s possible his cousin could be hired for a position, Tzountzouris used the term “retard.” Tzountzouris for his part had testified that Krajcik had poor productivity, his quality of work was inconsistent, and that they had to “keep an eye on him.”

The tribunal also found Krajcik was subjected to a lot of yelling, particularly by the new supervisor. In July of 2013 Krajcik quit his job.

How does the tribunal analyze cases for perceived disability?

Even though it is unclear whether Krajcik was ever officially diagnosed with a learning disability, the Human Rights Code’s meaning of the concept of “disability” includes a perceived disability.

The code does not specify all the conditions included under disability, but it does intend for “disability” to be interpreted broadly. Therefore this interpretation includes not only past and present conditions, but also perceived conditions. A perceived condition is one in which the person is “seen” to have this condition or may even be perceived to be developing a disability in the future.

This liberal approach to disability, in which a person can be “socially handicapped” by society’s response to a disability, regardless of whether it is real or perceived, is the analytical approach the human rights tribunal seems to have adopted in its analysis of discrimination.

However, in this case the tribunal found despite the name-calling by Tzountzouris and the yelling aimed at him by his supervisor, there was insufficient evidence to conclude Krajcik was discriminated against under the code due to a perceived learning disability.

The tribunal did find Krajcik was subjected to a poisoned work environment.

Finally, the tribunal also found that Krajcik quit his job partly because he was denied a day off, which was not a human rights-related issue.

So in the end, Krajick’s application was dismissed.

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