by Emond Harden LLP
In 2010 the Canadian Human Rights Tribunal released a landmark human rights decision and ruled that “family status”, one of the enumerated grounds of discrimination in human rights legislation, includes the family care obligations of employees (Johnstone v. Canadian Border Services Agency). Recent decisions in Ontario and at the federal level confirm this ruling. As a result, employers may be under a legal obligation to accommodate the family care responsibilities of employees to the point of undue hardship. Failure to meet this obligation may result in discrimination claims under the applicable human rights code.
“Family status” under the Ontario Human Rights Code is defined as the status of being in a parent and child relationship. In some jurisdictions, “family status” is not explicitly defined.
Family care obligations generally fall within two broad categories: child care obligations; and elder care obligations. Child care obligations can generally be seen as the parental responsibilities that an employee has to his or her children. Elder care obligations are responsibilities that an employee may have to an aging parent or relative.
The family status discrimination cases that have been litigated generally involve a work requirement that conflicts with an employee’s family care responsibilities. Decision makers have considered whether the employee’s family care responsibilities are genuine and substantial, and if so, whether the conflicting work requirement prevents the employee from participating fully in the workplace. Consideration is given to whether the work requirement is a bona fide requirement, in other words necessary to the employer’s operation, and whether the employer can accommodate the employee’s family care obligations without undue hardship.
These issues were illustrated in the decision of the Ontario Human Rights Tribunal in Devaney v. ZRV Holdings Limited (August, 2012). The employee, with 27 years’ of service, was the primary caregiver of his ailing mother. His care giving duties were extensive and often resulted in the employee working from home, and being late or absent. The employer issued numerous warnings to the employee and eventually terminated his employment. The Ontario Human Rights Tribunal discussed the distinction between the family care responsibilities of the caregiver, and his choices or preferences. The Tribunal stated that if it is the caregiver’s choice, rather than need, that precludes the caregiver from attending work, discrimination is not established. This was consistent with the human rights principle that accommodation is required for human rights needs, not preferences.
The Tribunal found that the employee’s family care responsibilities were a significant factor in the dismissal and that the employer’s strict requirements for attendance had an adverse impact on the employee given these responsibilities. Discrimination was established since the employer did not make any attempts to accommodate the needs of the employee and there was no evidence of undue hardship. The employee was awarded $15,000 for injury to his dignity, feelings and self-respect. The employer was also ordered to develop a workplace human rights policy, and to provide mandatory human rights training to management and staff.
The federal approach to claims of discrimination on the basis of family status involving family care obligations appears more generous to employees than that of Ontario. In the federal cases, the focus is whether a term or condition of employment creates a serious interference with a parental or other family obligation, and as a consequence, the employee is unable to participate equally and fully in employment. The level of “serious interference” necessary to establish discrimination has been criticized as being an overly low threshold – whether the employee’s ability to fulfill the family obligation is impacted in a realistic way. Employers have argued for a higher threshold and have encouraged decision-makers to give weight to the requirement of “serious” interference. This has generally been rejected on the basis that such an approach would impose a higher threshold for human rights claims based on family status than the threshold for claims based on other prohibited grounds.
In light of these developments, employers may find that there are increasing requests by employees for accommodation of family care needs. An analysis should first be done of the steps taken, if any, by the employee to balance family and worklife responsibilities before turning to the employer for accommodation. Employers may consider implementing policies for addressing such requests, but must remember that each request must be considered on an individual basis. In most cases, an employer will be able to meet its legal obligation to accommodate the family care needs of employees by simply providing more flexibility and options to all employees. The Ontario Human Rights Commission recommends that employers consider options for flexible hours, compressed work weeks, reduced work hours, and even job-sharing. This approach may represent an unrealistic vision of the workplace and productivity requirements which requires further challenge by employers.
