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November 28, 2016

Growing Pains: The Changing Face of “Family Status” Discrimination in Employment Law

Author Brandin O'Connor

The responsibility of caring for dependents, including children and aging parents, can have a significant impact on an employee’s workplace commitments.

Employers in Ontario have long known “family status” as a protected ground under the Ontario Human Rights Code (“Code”), defined as “the status of being in a parent and child relationship.”

Claims of discrimination based this ground typically arise when workplace scheduling requirements run up against an employee’s commitment to either (i) childcare, or (ii) eldercare. But when is that conflict truly discriminatory, and what constitutes reasonable accommodation?

Remarkably, courts and tribunals have struggled to define the actual test for establishing discrimination based on family status. At the heart of this debate is the trouble of defining when the impact of work on family obligations actually reaches the point of “discrimination.” 

The Johnstone Test

In 2014, the Federal Court of Appeal in Canada (Attorney General) v Johnstone (“Johnstone”) articulated an influential test – at least when it comes to an employee’s childcare obligations.

Under the Johnstone test, the individual claiming discrimination must establish that (1) they have a child under their care and supervision and (2) that their childcare obligation is a legal responsibility as opposed to a personal choice. The individual must also establish that (3) they have made reasonable efforts to find alternative solutions to their childcare obligations and that no other solution is reasonably accessible. Finally, the individual must show that (4) the workplace rule interferes with their childcare obligations in a manner which is more than trivial.

This test contains some important requirements, namely a legal responsibility, and the onus for an employee to show reasonable effort in trying to find a solution to the work/family conflict. It appears to establish a more stringent test for “family status” discrimination, as opposed to other types of discrimination (e.g. sexual or racial), likely driven by the Court’s concern for how wide the scope of these types of claims might become.

The Misetich Case

However, in a recent decision, Misetich v Value Village Stores Inc (“Misetich”), the Ontario Human Rights Tribunal (“Tribunal”) declined to follow the test set out in Johnstone and questioned whether there should be a separate legal test for family status discrimination. The decision is important for Ontario employers, as the Tribunal is guided by its own case law.

The Misetich decision appears to have articulated a less onerous test for employees to show discrimination based on family status.

In this case, a Value Village employee developed a repetitive strain injury which required workplace accommodations. The employer offered modified duties which required the employee to work evening and weekend shifts. The employee refused on the basis that the new schedule interfered with her care of an elderly parent.

Over a number of months, the employer repeatedly requested medical and/or legal documentation from the employee regarding the true nature of her eldercare commitments: who was the primary caregiver? Was the care essential to health or safety? Were there any alternatives? The inquiries were likely animated by the Johnstone test requirements.

The “intransigent” employee only provided minimal information to the employer, citing confidentiality and privacy, but frustrating the employer’s efforts to get to the root of the conflict. The employee continued to miss scheduled shifts and refused to provide the employer with the requested information and as a result, she was terminated for job abandonment.

No Separate Legal Test for Family Status Discrimination

The Tribunal used this case as an opportunity to clarify what it viewed as the correct test for family status discrimination. The Tribunal acknowledged that earlier decisions had tried to create a more stringent test for family status discrimination in an attempt to emphasize that not every conflict between work and family obligation is discriminatory. The Tribunal was sympathetic to this concern, but decided that it was unnecessary to have a separate legal test for family status discrimination, as opposed to other forms of discrimination.

What about “Legal Responsibility”?

The Tribunal noted that the requirement of legal responsibility, as set out in Johnstone, is difficult to apply in the context of eldercare. Further, there are many caregiver obligations which do not arise out of  a legal responsibility, yet are essential to the parent/child relationship.

What about “Reasonable Efforts to Find Alternate Solutions”?

The Tribunal also held that, in order to prove discrimination, it is not necessary for an applicant to establish that they could not “self-accommodate” the adverse impact caused by the workplace rule, by finding other arrangements.

Establishing Family Status Discrimination under the Code

The Tribunal held that there is only one test for establishing discrimination based on a prohibited ground: an applicant has to establish that (i) they were a member of a protected group, (ii) that they had experienced adverse treatment and that (iii) the ground of discrimination was a factor in the adverse treatment.

The Tribunal attempted to provide some guidance for establishing family status discrimination in the context of employment, specifically:

“In order to establish family status discrimination in the context of employment, the employee will have to do more than simply establish a negative impact on a family need. The negative impact must result in real disadvantage to the parent/child relationship and the responsibilities that flow from that relationship, and/or to the employee’s work.”

But when does the negative impact reach a “real disadvantage”? The Tribunal’s indefinite answer: a “contextual analysis” is required – that is to say, the facts matter.

Within this analysis, the Tribunal may consider whether there are other supports available to the applicant, to determine if the negative impact really amounts to discrimination. For example, a contextual analysis may include the Tribunal considering whether an employee is a single parent.

However, the Tribunal emphasized that consideration of “available supports” is fundamentally different than requiring an employee to show that he or she has “self-accommodated”, as required under the Johnstone test. The Tribunal pointed out that self-accommodation means that the employee bears the responsibility of finding a solution to the family/work conflict, something the Tribunal rejected.

If an employee establishes that they face discrimination based on family needs, the onus shifts to the employer to show that the employee couldn’t be accommodated to the point of undue hardship. The Tribunal maintained that the employee has an obligation to provide the employer with sufficient information relating to the family-related needs and cooperate with the respondent to find possible solutions. Accommodation remains a two-way street.

Outcome in Misetich

In Misetich, the Tribunal did not find discrimination on the facts, in large part because the employee simply did not engage with the employer and provide sufficient information to substantiate the nature of the conflict between the schedule proposed by the employer and her eldercare responsibilities. (It also likely helped that the employer was trying to accommodate a physical restriction in the process.)

Remarkably though, the Tribunal heard evidence at the hearing that the employee really did have serious family needs related to the care of her 86-year-old mother – she just refused to adequately advise the employer of them. If she had, the Tribunal noted that her claim may have succeeded.

What does this mean for employers?

For now, Ontario employers facing family status claims should not count on any requirement that their employees (i) demonstrate a strict legal responsibility to care for their child/parent, or (ii) show that they have made reasonable efforts to self-accommodate. Applicants may succeed at the Tribunal without proving either.

What the employer can, and should do, is try to get to the root of the “negative impact” the employee is relying upon, to see if it really holds up to reasonable scrutiny and problem-solving. Value Village succeeded in part because it tried to obtain some objective proof of the nature of the conflict the employee was claiming, and the employee obstinately refused to provide any. Good faith efforts at accommodating real disadvantages will go a long way to avoid liability.

The foregoing is for informational purposes only, and should in no way be relied upon as legal advice. For legal advice tailored to your circumstances and business, please contact any of SOM LLP’s lawyer’s by email or telephone.

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