The Ontario Human Rights Code recognizes and protects employees against discrimination on the basis of "family status". Traditionally, employees have requested accommodation on the basis of family status relating to obligations associated with child care; however, as the population of Ontario ages, many members of the Ontario workforce are finding that they have familial obligations arising from the need to care for elderly parents as well.
The law in this area is rapidly evolving as more and more employees seek accommodation from their employers. Generally, where a distinction, conduct or action that is based upon a person's family status has the effect of limiting access to opportunity (i.e. more hours of work, a promotion) that would otherwise be available to other members of the workforce, then it is considered family status discrimination.1
A contentious issue at law is under what circumstances an employee should be accommodated for obligations associated with family status. In one case from the British Columbia Court of Appeal the Court held that discrimination is made out "when a change in a term or condition of employment...results in a serious interference with a substantial parental or other family duty or obligations of the employee" (emphasis added).2
However, the Federal Court of Appeal recently held that this standard which requires an employee to show a "serious interference" is too high a threshold for employees.3 Instead, the Federal Court held that at issue is whether or not the employment rule in question interfered with an employee's ability to fulfill substantial parental obligations in a realistic way. Once this is established, the burden then shifts to the employer to demonstrate that the term of employment in question is a bona fide occupational requirement and that accommodating the request would be undue hardship.
In the area of family status and eldercare, a recent decision before the Human Rights Tribunal of Ontario (the "Tribunal") applied a similar test as that recently adopted by the Federal Court of Appeal.
In Devaney v. ZRV Holdings4 the applicant was terminated in 2009 after his employer became frustrated with his continued absences relating to his efforts to take care of his ailing mother. His mother's health had declined to the point where he was required to do much of his work from home so that he could be available if his mother should need assistance. The employer warned Mr. Devaney several times that he would be terminated if his attendance record did not improve and when he did not comply, he was terminated.
The Tribunal found that since Mr. Devaney's presence at home was required, as opposed to simply based on a personal preference, the employer had a duty to accommodate him.
The employer argued that Mr. Devaney had chosen to spend time with his mother at home, rather than place her in a long-term care facility. Mr. Devaney testified that he did not have the resources to hire home-care services, an alternative that the employer argued was available to him. The Tribunal held that the employer's insistence that Mr. Devaney attend work in person constituted a prima facie case for discrimination, since he had no reasonable alternative but to stay home.
In determining whether the employer's requirement that Mr. Devaney be present at the office was a bona fide occupational requirement, the Tribunal rejected the employer's claims that Mr. Devaney's absences were having a negative effect on the performance of his team. In fact, the evidence showed that the client for whom Mr. Devaney was principally working was happy with his work. Moreover, Mr. Devaney's mother was eventually accepted into a long-term care facility, which would have significantly reduced his need to be out of the office. As such, the Tribunal found that the employer's requirement was not a bona fide occupational requirement, and that the employer could have accommodated Mr. Devaney's needs without undue hardship. The Tribunal awarded Mr. Devaney $15,000 in general damages and also ordered the employer to develop and implement a workplace human rights policy and training to its staff.
The aim of these protections is to accommodate an employees' ability to meet substantial familial obligations. Although the law relating to the appropriate standard of accommodation is unclear, moving forwards, accommodation requests on the basis of family status (including eldercare) should be taken seriously. Offering flexible working hours, remote access and other creative solutions can greatly reduce employers' exposure to these claims in addition to creating an attractive workplace.
Footnotes
1. Andrews v Law Society of British Columbia [1989] 1 SCR 143.
2. Health Sciences Association of BC v Campbell River & North Island Transit Society [2004] BCCA 260
3. Johnstone v Canada (Attorney General) [2013] FC 113.
4. 2012 HRTO 1590.
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