Thursday, April 17, 2008

Your Human Right NOT to Wash your Hands Working at McDonald's?

In Canada right now there is a great deal of scrutiny being cast on our country's various human rights tribunals.

The tribunals were established to help ensure that complainants who felt they were being discriminated against due to their race or sex could settle their disputes. Unfortunately it seems that over time these tribunals have extended their reach and now try to arbitrate many matters that you might have thought would have been beyond their purvey.

In the case of Ezra Levant, former publisher of the Western Standard, they are trying to quash his freedom of speech. He is being investigated by the Alberta Human Rights Commission for his magazines publication of the Danish cartoons of Muhammad that led to riots in many Muslim countries. He's explicitly detailed his dealings with the courts and regardless of your political bent, it makes for fascinating and frightening reading. I'd start with this post of his and then work your way up from it (January 11th, 2008) in his archives.

So after that long tangent it brings me to Ezra's post from yesterday detailing the B.C. Human Rights Tribunal ruling that awarded a McDonald's employee almost $50,000 for apparently violating her "human right" to not wash her hands while she worked there. Here's a brief clip from Ezra's blog,

"Datt wouldn't wash her hands. She just wouldn't -- she said she couldn't. So her employment was terminated. The B.C. Human Rights Tribunal ordered that McDonald's pay her not only $23,000 for "lost income", but an additional $25,000 for her "dignity and self-respect". You see, in B.C. a food preparation worker's self-respect trumps a company's commitment to cleanliness. They violated her "human rights".

The $50,000+ penalty -- plus several years of legal fees and medical and rehab experts -- isn't the worst of it. Inventing a "human right" for a worker to go to the bathroom and then to handle meat without washing her hands in between, as an excuse for that $50,000 shakedown isn't the worst of it either.

The worst of it is that the BCHRT has ordered that McDonald's, in paragraph 298 of the decision, to "cease the discriminatory conduct or any similar conduct and refrain from committing the same or similar contravention.
While I'm not trying to diminish the medical condition of the complainant, I would think that certainly a restaurant has the right to fire someone who is unable to wash their hands especially given that it's actually the law as Ezra points out,
"In B.C., McDonald's hygiene policy isn't just a matter of corporate pride. It's a matter of the law -- both the Health Act and the Food Premises Regulations. And then there's B.C.'s Food Protection Guidelines issued by the B.C. Centre for Disease Control."
We live in a strange, strange world.

Bottom line on the matter?

Maybe it'd be best to avoid the McDonald's located on South West Marine Drive in Vancouver.

For a brief overview of this whole issue (human rights tribunals, not the McDonald's case), here's national treasure Rick Mercer's rant on the matter:

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  1. Anonymous12:12 pm

    What could possibly be her medical problem that kept her from washing her hands?

  2. Anonymous2:24 pm

    I usually respect what you have to say, but today I was quite surprised to see that you used Levant's blog as your evidence without appearing to have read the decision that was handed down by the tribunal.

    If you read it, you will see that McDonald's is not being asked to allow her to prepare food without washing her hands, but to allow her to work in jobs that do not require as much food contact (and therefore less frequent hand washing). This was a woman who had worked for McD's for 23 years and who likely developed her skin problems from working there.

    Any time McDonald's is presented as the victim, a red flag should immediately go up, don't you think?

  3. Hi Anonymous,

    I did in fact read the ruling from the tribunal.

    While I do indeed feel sympathy for the complainant, given the nature of the restaurant business and the very explicit rules set out not only by McDonald's but also by our country's Health Act and the Food Premises Regulation Act, along with British Columbia's Centre for Disease Control Guidelines, I have a difficult time with the notion that washing one's hands while working in a restaurant is in any way negotiable.

    I'm not a lawyer, but given that the worker involved was in fact a restaurant worker, and that the restaurant by law in fact had no jobs that did not involve hand washing, I do indeed have a tough time with the decision.

    But even putting that aside, I think the question Ezra has is not whether or not this individual was wrongfully dismissed, but rather where her dismissal was a violoation of her human rights.

  4. Anonymous8:57 pm

    Those tribunals look scary. Glad they haven't made it to the US yet. Washing your hands a lot with antibacterial soap is incredibly rough on them- mine used to crack and bleed in the winter when I worked in day care (60+ washes a day, with diaper changes, meals, etc.), even with gloved moisturizing with expensive lotions at night. I haven't worked there in years, but they still dry out easily. I'm surprised she didn't seek a better workplace when she noticed her hands getting bad. But maybe it'll give people yet another reason to seek a healthier eating alternative.

  5. I think Levant is misreading the decision.

    Here is what he says:
    "The British Columbia Human Rights Tribunal has ruled that one of the employees there has a human right not to wash her hands when working in their kitchen."

    That is just an utter lie. No other way of putting it.

    Read instead the decision he links to. Especially, paragraphs starting from 206.

    The problem was that McDonalds had to go through a procedure to assure all the parties that reasonable steps had been taken to accommodate her. For instance, in finding her other work, unrelated to preparing food (a fact mentioned in the decision at numerous points). Instead, McDonalds was uninterested in discovering the true limits of her disability (which may well have precluded her from working with food), by failing to properly communicate between GWL, which handled disability claims for McDonalds, and the worker and her doctors. It may be that no job would be available to her in McDonalds. (In fact, I'd guess that would be the most likely outcome, since there are only limited jobs of that nature in McDonalds. In that case, after going through the process properly, they could have fired her.)

    The decision doesn't say that she should have been able to return to work without washing her hands or wearing gloves. Or that McDonalds' hand washing policy ought to have been modified (despite what Levant believes, and what Freedhoff apparently concurs with). The decision strongly implies in several places that McDonalds hand washing policies could well be justified, if they'd just tried. If McDonalds had considered its policies and job options, and found that she couldn't work without washing hands, that wearing gloves wasn't an option, that their hand washing policies were sensible, that no position for her was available, and that no possible accommodation in her work environment could have been made, there is nothing in the decision which suggests the tribunal wouldn't have considered that such a determination by McDonalds completely proper.

    McDonalds and its insurers didn't communicate with her or her doctors forthrightly.

    McDonalds didn't consider, in any fashion, whether its policies could accommodate the woman's disability. (If they couldn't, so be it. But they didn't consider it.)

    McDonalds didn't try to find her a position that wouldn't involve her disability. (If one didn't exist, so be it.)

    Levant is reading far too much into the tribunal's questioning of McDonalds hand washing practice: the decision isn't a criticism of it, it is questioning the lack of information supplied by McDonalds justifying it and documenting it. If they had supplied such minimal information, and communicated it to the worker, her doctors and the insurer, it would have been useful in determining whether there was a position where she could work (or not).

    Doing a minimal amount of diligence could well have resulted in same outcome (the firing of employee). But McDonalds didn't do their job, and left their employee dangling. So they lose big time.

    I hope you eventually do read the decision yourself. After doing so, you ought to come to the conclusion that in his post, Levant is writing sensationalistic garbage.

    Why don't you change your headline then, after reading the decision?

    And is it too much for me to ask that you please never take anything Ezra Levant writes at face value, without first confirming it yourself? (I know you can do this -- you're a real doctor after all, and your well deserved credibility as a commentator, in my view, has been earned by not allowing to go unanswered and uncriticized claims by agents of government and industry. Please don't take a pass when communicating to your readers what a professional blow-hard writes.)


    Have you got a favourite crow pie recipe, Freedhoff?

  6. Anonymous7:04 am

    Whoa, looks like one of Micky-D's lawyers has decided to respond to you! LOL

  7. Hi crf,

    I do have a recipe for crow-pie.

    I baked up a batch and have a slice - for you.

    As Ezra, who may well be a blowhard, but a blowhard who can read, and me, a doctor who in fact was an English major before medicine and can also read note, in paragraph 298 of the decision, McDonald's was ordered to "cease the discriminatory conduct or any similar conduct and refrain from committing the same or similar contravention."

    In this case the discriminatory conduct was not the issue of not finding the complainant another position, but rather that they insisted if she worked in a McDonald's restaurant that she has to wash her hands.

    That particular ruling therefore has nothing to do with the complainant's possibly wrongful dismissal anymore and instead extends to the handwashing practices of that particular McDonald's as a whole. Given that it's a "human rights tribunal" ruling, it is very fair to say that at that particular McDonald's, it would violate a worker's human rights to insist that they wash their hands.

    It also serves to make Ezra's point, that these commissions have outgrown their britches.

    Enjoy your pie.

  8. I completely disagree with your interpretation of the decision.

    This isn't a dispute about hand washing policies at McDonalds.

    You write:
    "The discriminatory conduct was not the issue of not finding the complainant another position".

    It was, in fact, in part, but not in the main. The decision discusses this at length.

    In the main, the conduct of McDonalds was criticized because it refused to follow up with her doctors to determine to true nature of her disability, in order to determine what positions she could work, and whether or not some jobs could be modified. If McDonalds had done this, and determined no job was available, so be it. But McDonalds didn't try.

    In other words, there is a process McDonalds should have followed and documented and justified in order to determine whether any job, modified or not, would be available for the worker.

    You offer no rebuttal to any point in the decision itself.

    You insinuate that the tribunal found that she should have been able to go back to work in preparing food or serving without washing her hands. That is simply FALSE. The decision, at several points notes that hand washing policies for food prep and restaurant workers are reasonable.

  9. I'm rather surprised, as well, at this posting. The idea that seems to be being put forward is:
    1) don't eat at a particular McDonalds;
    2) The Human Rights tribunal has stated that it is a human right not to wash your hands while serving or preparing food at McDonalds;

    Some key points from the 78 page document: [166] In essence, Ms. Datt argued that McDonald’s failed to accommodate her to the point of undue hardship when it failed to inform itself of the nature and extent of her disability and whether she could meet its hand-washing policies. Ms. Datt also argued that McDonald’s failed to accommodate her when it failed to determine if her duties could be altered to accommodate her disability or, whether there was another job that she could perform within its organization.

    [225] It is the employer who bears the onus of establishing that it has accommodated an employee to the point of undue hardship.

    I accept that McDonald’s hand-washing policies required employees to wash their hands more frequently than would have been the case in other service type jobs. However, the onus lies with McDonald’s to establish that it accommodated Ms. Datt in the face of its own hand-washing policies. It needed to assess if “frequent” meant that Ms. Datt could do no job, or modified job, in its restaurant. McDonald’s could have obtained clear and specific medical evidence through further discussions with Ms. Datt and/or Dr. Kitson upon which to base its decision. In the circumstances of this case, it should have done so.

    [237] I find that the conclusions reached in Gordy are of assistance in this case. First, there is little or no evidence that McDonald’s “turned its mind to the possible ways” it might accommodate Ms. Datt. Ms. Basi was the first person from McDonald’s that actually spoke to her about her situation, beyond obtaining information, and her job at McDonald’s. As she herself acknowledged, she did not seek any further information from Dr. Kitson nor did she attempt to determine if Ms. Datt’s job duties could be changed or modified. She did not consider making any enquiries about the possibility of Ms. Datt wearing gloves while preparing salads, muffins and fajitas, even though that job was located in the food preparation area. She said that there was the hourly hand-washing policy and, in her view, no modification to any of the duties at McDonald’s would address this issue, although there was some evidence to suggest that the hand-washing policy was not always followed at all times.
    [238] Ms. Basi did not consider, or speak to anyone who might be in a professional position to know, and assess, what could be done in the face of Ms. Datt’s restrictions to enable McDonald’s to meet its legal requirements. She did not consider the use of other soaps or the use of anti-septic sanitizers. In my view, Ms. Basi did not fully inform herself, and no one else from McDonald’s considered, what could be done to return Ms. Datt to the workplace, even in the face of its hand-washing policies and food safety concerns.

    [239] The Food Premises Regulations, referred to by McDonald’s, does not contain a specific time, or even how often a person should wash their hands. The requirement is that hands be washed as often as necessary to prevent the contamination of food. As I said earlier, I accept that the goal of preventing the contamination of food is why McDonald’s established its hand-washing policy. This goal cannot be understated and it
    accords with common sense in the handling and preparation of food. However, there were duties that Ms. Datt could have performed that did not require her to handle food. For example, there was the position of Swing Manager that had supervisory duties. These duties did not require that she handle food, unless she was required to help out when there was a shortage of staff. In these types of circumstances, Ms. Datt would be required to wash her hands but it is not clear to me if that would have been “frequent” or if the requirement would have caused her difficulty. This was not assessed in the context of the actual duties to be performed.

    [243] McDonald’s argued that it did not have an obligation to create a position for Ms. Datt or to place her into a position for which she was not qualified. It relied on Holmes and the other decisions cited above to support its position. However, there are cases that have discussed an employer’s obligation to create a new position: see for example the discussion in Abetkoff at paras. 40-43. In my view, this is a correct statement of the law. The issue in this case was not whether McDonald’s had an obligation to create a job for Ms. Datt but whether, given the jobs that were available those jobs could have been modified or differently organized for Ms. Datt. Further, McDonald’s could have considered her for part-time work, offered her shorter shifts that would have met her hand-washing restrictions or allowed her to work only at the Drive Thru. They could have also considered the jobs suggested by Ms. Datt. None of these possibilities would have required it to create a new position. In Holmes, the Department of National Defence considered a number of options to accommodate Ms. Holmes. They attempted to find an alternate position for her, they assigned her light duties and they modified her work station, among other things. Unlike McDonald’s, it took steps to accommodate Ms. Holmes and as a result met its obligations to accommodate Ms. Holmes to the point of undue hardship.

    [250] It may be that, at the end of the day, Ms. Datt could not have been accommodated at McDonald’s because she simply could not meet its hand-washing policies doing any job or combination of jobs, but based on the evidence before me, I find that McDonald’s failed to take all the necessary steps to make this final determination.

    [152] Section 13 of the Code provides, in part:
    (1) A person must not
    (a) refuse to employ or refuse to continue to employ a person, or
    (b) discriminate against a person regarding employment or any term or condition of employment
    because of the…physical disability…of that person

  10. All this posting proves and it's not just here it's in the latest issue of Mcleans magazine as well is that British Columbia is run by idiots. And that employers are on the hook for any excuse people can invent. Protecting the rights of the few that violate the rights of the many, this should be the new motto for British Columbia, Canada the most pathetic place on earth.

  11. You should read the BC Human Rights Tribunal decision. Those who say that the Tribunal said that Ms Datt (the complainant) did not have to wash her hands while working for MacDonalds are twisting the truth to serve their own arguments. (I just read the decision it's here:

    What the tribunal said is that MacDonalds had to accommodate the complainant by finding her other work. the tribunal clearly stated that MacDonalds was justified in requiring workers to wash their hands.

    Misrepresenting cases such as this does nobody any good (well except for Ezra Levant). Just think about it for a moment. The one thing that anyu of us black white, gay straight can be come is disabled. What would you want for yourself or for a lved one id you or they became disabled. Would you want to be thrown out of your workplace - I very much doubt that as you were being booted out you would say "Oh, I quite understand". I am also quite sure that you would look to all of the things that you would be quite capable of doing and ask yourself why your employer had failed to locate alternative work for you. Plainly put, that is what this sadly misrepresented case is about. MacDonalds failed to accommodate the complainant, not wo that she would make burgers with diseased hands but, in another position within its very large organization. That' the other point that should be made. The Tribunal was quite well aware of the fact that they were not asking a mom and pop store to find alternative work for the complainant.

    Where does all of this lead us? If cases like this are not decided like this, Canada will revert to being a very inhospitable place for persons with disabilities.

    Please, please read the case!!!!

  12. Good lord this is still a discussion?

    Biggar, don't take my words for it, take Howard Levitt's by clicking here to go to the blog post detailing the interpretation of one of Canada's top employment lawyers.