Enough's enough - Macleans.ca

Enough’s enough

Exclusive excerpt: How McDonald’s hand-washing policy was overruled

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Enough's enoughIf British Columbia sounds like the land that common sense forgot when it comes to human rights, there’s good reason. Many of the most ridiculous case studies discussed in this book originate in that province.

Take, for instance, the time the B.C. Human Rights Tribunal declared that a McDonald’s restaurant employee had the human right not to wash her hands, even when she worked in the kitchen, and instead should be accommodated by finding her another job in the organization where handwashing was not essential. In theory this makes sense; but in practice, McDonald’s, who ought to know, say that there aren’t any positions that don’t require handwashing.

Also at Macleans.ca: Ezra Levant’s case against a tribunal system that flattens civil liberties in Canada

Beena Datt was a McDonald’s employee who claimed she’d developed a skin condition that prevented her from washing her hands in compliance with McDonald’s hygiene policy. That’s the same hygiene policy that has helped turn McDonald’s into a fast-food market leader here in the West and an embassy for Westerners travelling overseas. When you’re in a Third World country and tired of eating in hygiene-challenged local restaurants, you can count on a Western standard of cleanliness at McDonald’s.

Which is to say that McDonald’s handwashing policy isn’t just a matter of corporate pride, it’s a key to its business model. In British Columbia, it’s also a legal matter: both the Health Act and its Food Premises Regulation mandate rigorous hygiene policies. And then there’s the food protection guidelines issued by the B.C. Centre for Disease Control. McDonald’s follows all of them.

No matter what you think of Big Macs and Quarter Pounders, you’ve got to concede that the folks at McDonald’s are clean freaks. Their rules not only require employees to wash their hands after using the bathroom, but also after shaking someone’s hand, after taking food out of the freezer, or after touching a door handle. They even have a little bell that goes off every hour to remind employees to all go wash their hands.

But Datt said she wouldn’t wash her hands—at least not more than once in a while. She said it hurt too much. McDonald’s tried to help. They gave her two months of disability leave, while Datt tried out different creams and lotions to alleviate her skin condition. She came back to work, but her hands started hurting again when she washed them.

Again, McDonald’s gave her disability pay, as different doctors tried to solve Datt’s condition, even checking her for exotic allergies. After 2½ years of disability leave punctuated by two more failed attempts to start working again, it became clear that Datt simply couldn’t do any of the jobs at McDonald’s that required food handling. Finally, McDonald’s let her go.

Other people might have moved on, looking for work where handwashing wasn’t required. But not Datt. She sued McDonald’s. Not for wrongful dismissal—handwashing was clearly a legitimate requirement of the job. Nor for reneging on the payment of disability insurance—McDonald’s certainly had been generous with that. In fact, Datt didn’t really sue the restaurant chain at all in the normal sense of the word, for they clearly had lived up to their employment obligations, and then some. Rather, Datt went to the people she knew would give her the kind of complaint-friendly “justice” she wanted: the B.C. Human Rights Tribunal. And there she met a former divorce lawyer and left-wing lobbyist named Judy Parrack.

Parrack ruled that there was no evidence about whether Datt could function at McDonald’s if she washed her hands less often. Parrack was up and away, socking it to the big, evil corporation on behalf of a poor working woman. She ordered McDonald’s to pay Datt $23,000 for “lost income” and an additional $25,000 for her “dignity and self-respect.” The tribunal found no evidence that McDonald’s treated Datt disrespectfully other than the alleged violation of her right not to wash her hands as often as McDonald’s required. But that, apparently, was beside the point.

According to the B.C. Human Rights Tribunal, a kitchen worker’s self-respect trumps a company’s commitment to cleanliness. They violated her human rights. So McDonald’s was ordered to pay $50,000 plus interest. Parrack ruled that McDonald’s just didn’t do enough to accommodate their long-time employee. McDonald’s answer was simple: there was no job in the restaurant, including the manager, who wasn’t expected to handle food from time to time. There just wasn’t any reasonable way to keep on an employee who couldn’t or wouldn’t wash her hands as often as required. That wasn’t good enough for Parrack. So fifty grand it was.

But from the company’s perspective, even that outrageous penalty—plus two years of disability payments, plus three years of legal fees—wasn’t the worst of it. Nor was the tribunal’s invention of a standard for McDonald’s that was less stringent than McDonald’s required. No, it was the BCHRT order that McDonald’s “cease the discriminatory conduct or any similar conduct and refrain from committing the same or similar contravention.” Beena Datt and her unwashed hands no longer toil under the Golden Arches. But since the order applies to any future case similar to Datt’s, dozens of other fry jockeys could be emboldened to pass up soap and water under cover of human rights.

What would happen if, heaven forbid, someone contracted a disease from McDonald’s food because of this insane order? Could the victim sue the restaurant for failing to live up to its legal public health requirements, even though McDonald’s wanted to do so? Could the BCHRT itself be sued? What if it wasn’t just one customer who got an upset stomach, but a dozen people dying from E. coli? And why do we have to play such a risky game in any case, when the science behind food hygiene is settled?

Excerpted from Shakedown by Ezra Levant. Published by McClelland & Stewart Ltd. Reprinted by permission of the publisher.