As employee requests for accommodation on the basis of family
status become more common, employers have been attempting to
ascertain their specific obligations. Unfortunately, the case law
surrounding family status accommodation has contained little in the
way of definable markers, and divining an employer's specific
responsibilities has become increasingly difficult.
However, a decision of the Ontario Human Rights Tribunal, Devaney v. ZRV Holdings Limited, has recently
provided some assistance by establishing a new test that focuses on
the distinction between the preferences and needs of employees.
Devaney had been an architect with ZRV Holdings for 25 years
when in 2007 his physical presence at work began to decrease.
As Devaney was a leader for a major project, ZRV required that he
be physically present at the office during regular working
hours. Nevertheless, Devaney continued to work remotely as
necessary to tend to his elderly mother. On January 9, 2009,
ZRV terminated Devaney's employment for just cause, citing his
"abysmal" physical attendance record as the basis for the
termination. Shortly after his termination, Devaney began
working as a private contractor for a major ZRV client and brought
an application against ZRV before the Tribunal.
In determining whether ZRV violated its duty to accommodate
Devany on the basis of family status, the Tribunal canvassed tests
already adopted by the Canadian Human Rights Tribunal and the
British Columbia Court of Appeal. The Tribunal then
established the following test to determine whether a prima
facie case of family status discrimination
Has the employee demonstrated that he or she was adversely
impacted by a requirement imposed by his or her status as a
Did the adverse impact relate only to the employee's
preference or choice, as opposed to his or her needs?
If the adverse impact is deemed to relate merely to an
employee's preference or choice, prima facie
discrimination will not be established. In the case at hand,
the Tribunal found that ZRV's attendance policy had an adverse
impact on Devaney as a result of his status as a caregiver for his
elderly mother. By strictly insisting on the attendance
requirements rather than engaging in a dialogue with Devaney about
his needs and exploring potential accommodation measures, the
Tribunal found that ZRV contravened the Code and awarded Devaney
$15,000 in general damages.
This case confirms that elder care responsibilities (at lease
those based on a parent-child relationship) fall within the scope
of family status under the Code, and provides much-needed guidance
in determining whether a prima facie case of family status
discrimination exists. When faced with an accommodation
request, employers must take care to evaluate it thoroughly and
objectively, and not rely exclusively on the strict language of
existing policies that might appear at first blush to govern the
situation at hand. In light of this decision, employers are
also encouraged to keep the new test in mind during the evaluation
process, and determine whether the employee is basing his or her
family status accommodation request on legitimate needs versus mere
choices or preferences.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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