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Attempting to balance life's many responsibilities can be
difficult for anyone, and the stress involved in being a parent,
child, spouse, and employee can be exhausting. Child and elder care
responsibilities are often unpredictable, and the resulting
absenteeism can be extremely frustrating for an employer.
Absenteeism strikes at the very heart of the employer's
residual right to manage its enterprise.
In the past, discrimination based on family status was rarely
discussed and typically limited to the protection of women
re-entering the workforce after a maternity leave. However,
employee requests for accommodation based on family status are
becoming more common and employers are becoming more aware of their
obligations under applicable human rights legislation. However, the
case law surrounding family status discrimination is less than
clear.
Although family status discrimination is prohibited by human
rights legislation across Canada, and the duty to accommodate
employees with child or elder care responsibilities has long been
recognized as part of an employer's duty to accommodate on the
basis of family status, the question remains "How far do we
cast the net?"
The recent decision of the Ontario Human Rights Tribunal (the
"Tribunal"), Devaney v ZRV Holdings Limited,
2012 HRTO 1590, provided some clarification. Devaney was an
architect with ZRV Holdings for approximately 27 years until the
termination of his employment for cause in January 2009. Beginning
in 2007, Devaney began spending less and less time at the office.
ZRV insisted that Devaney, who was the lead for a major firm
project, regularly attend the office during office hours. While
there was no question that Devaney was absent from work on numerous
occasions over a significant period of time, he took the position
that he completed his workload remotely, with the aid of
technology, in order to care for his elderly mother.
The Tribunal canvassed the broader test applicable to family
status complaints established by the Canadian Human Rights Tribunal
and the stricter test established by the British Columbia Court of
Appeal; however, ultimately the Tribunal adopted a new test
focusing on the distinction between the preferences and needs of
employees with caregiver responsibilities.
The Tribunal concluded that in order for the applicant to
establish a prima facie case of discrimination, the
applicant need only show that his employer's attendance
requirements had an adverse impact because his absences from the
office were required due to caregiving responsibilities. However,
the Tribunal did note that if the applicant was merely choosing to
provide care rather than it being a family responsibility, the
applicant would not be able to claim family status
discrimination.
The Tribunal concluded that the employer failed to engage in a
dialogue with Devaney regarding his caregiving needs and as such
failed "in its procedural and substantive obligations under
the duty to accommodate". Devaney was awarded $15,000 in
general damages for injury to his dignity, feelings and
self-respect.
What are the potential implications for employers? Although
Devaney seems to shed some light on the test for family status
discrimination, the law in this area continues to be unsettled.
However, employers should always keep in mind some tips for dealing
with discrimination:
If a discrimination issue is suspected, initiate a meaningful
dialogue to assess how best to accommodate the employee's
needs;
There is no one size fits all formula, each case must be
assessed individually;
Institute a discrimination and accommodation policy and ensure
consistent enforcement; and
Carefully document all accommodation discussions and the
accommodation process.
The foregoing provides only an overview. Readers are
cautioned against making any decisions based on this material
alone. Rather, a qualified lawyer should be consulted.
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