The basis of family status extends beyond childcare; there is also the developing issue of eldercare, that is, when members of the workforce need to take time away from work in order to tend to the needs of elderly and infirm parents. The Ontario Human Rights Tribunal was asked to deal with this very issue in Devaney v. ZRV Holdings Limited (2012 HRTO 1590).
The Applicant had worked for ZRV Holdings Limited ("ZRV") for 27 years (most of his career) as an architect and, for quite a while, his mother had been suffering from various health issues. In 2008, his mother was rendered entirely incapacitated and the Applicant was the primary caregiver. Due to his mother's various health issues, the Applicant was required to be away from the office (either to be fully absent from work or to work from home) on many occasions to attend to his mother's care, take her to appointments, etc. This absenteeism was of concern to ZRV who sent various correspondences to the Applicant letting him know that his poor attendance was unacceptable and that it needed to be improved or he would be terminated for cause. Based on what ZRV considered to be a failure to improve, the Applicant's employment was terminated on January 9, 2009. Subsequently, the Applicant filed a complaint with the Human Rights Tribunal.
The Tribunal determined that the question to be decided was:
The Applicant argued that he had
"significant elder care responsibilities towards his
mother" and that those responsibilities are "included
in the Code ground of 'family status'" (at para.
100). It was also the Applicant's position that family status
is not only discrimination because "a person is a mother,
father, son or daughter, but discrimination connected to the
identity and circumstances of an applicant's family
member" (at para. 102; emphasis added).
In response, ZRV argued that the Applicant did not establish a prima facie case of discrimination based on family status. It also argued that an employer need not accommodate all conflicts between work and parental obligations and not all conflicts can give rise to a find of discrimination. Importantly, ZRV argued that:
ZRV attempted to argue that there was no difference between the Applicant's care giving responsibilities and those of anybody else, that there was no evidence that the Applicant was "uniquely qualified" to care for his mother and that he could have hired someone to provide care services or admitted his mother to a long term facility but that he "chose" not to:
The decision – prima facie discrimination
The Tribunal adopted the appropriate analysis
(i.e. it determined first whether a prima facie case of
discrimination had been made out). The Tribunal rejected the idea
of establishing a higher test or threshold for family status
discrimination and distinguished between absences that were
required versus absences that were made by choice.
In determining whether the Applicant was required to attend to his mother's care, the Tribunal considered the evidence presented from the Applicant with respect to the various appointments and ways in which he needed to care for his mother. In contrast, ZRV had provided documentary evidence in terms of timesheets, logs, etc. to demonstrate his various absences.
While arguably not providing a definite response to ZRV's assertion that the Applicant should have hired someone to care for his mother (or "put" her in a home), the Tribunal looked at whether the Applicant was required to tend to his mother's care.
Ultimately, the Tribunal determined that the Applicant had established a prima facie case of discrimination, finding he had been required on many occasions (although not all to which he had attested) to be away from the office due to his elder care responsibilities. The Tribunal found that he had been terminated because of these absences.
The Tribunal noted that ZRV had been aware of the Applicant's elder care responsibilities and that:
The decision – duty to accommodate
The Tribunal then went on to determine whether ZRV had fulfilled the duty to accommodate to the point of undue hardship. The evidence showed that ZRV was aware that the reason for many of the Applicant's absences was because he was caring for his mother. ZRV tried to argue that company policy was such that if an employee needed accommodation, the company would wait for the employee to approach and ask for whatever accommodation was needed. ZRV also argued that it did not require proof of the Applicant's mother's illness and that it did not want to pry into his personal affairs. The Tribunal rejected ZRV's "hands off" approach and found that:
The Tribunal found that ZRV failed to do this and
did not "engage in any dialogue whatsoever with the
applicant concerning his needs related to his elder care
responsibilities and the possibility of accommodating those
needs" (para. 172). The Tribunal rejected any argument
that the Applicant had failed to fulfill his part of the
accommodation process (i.e. to communicate what accommodation he
would require because ZRV was aware that the Applicant had these
family responsibilities). ZRV should have asked what could be done
to accommodate the Applicant's circumstances.
The Tribunal did not accept ZRV's argument that the Applicant's working from home negatively affected morale and impeded on the Applicant's ability to fulfill his work responsibilities since the Applicant was quite reachable at home and he completed his work duties on time to the client's satisfaction.
The Tribunal found that there was no evidence of undue hardship arising from the Applicant's absences from the office and held there was:
Interestingly, after ZRV terminated the
Applicant, the Applicant asked for a second chance. ZRV offered to
take the Applicant back under a contract, the terms of which were
very similar to the original employment arrangement but would last
for only three months, after which the relationship would be
reviewed. ZRV argued that the contract was a form of accommodation
in response to the Applicant's request to be given another
chance but this argument was outright rejected by the Tribunal.
Notably, the Tribunal also rejected the Applicant's argument
that ZRV's attempts to manage his absence were vexatious or
could constitute harassment.
Overall, the Tribunal found that ZRV discriminated against the Applicant on the basis of family status and failed in its duty to accommodate to the point of undue hardship. As a remedy, based on the Applicant's "considerable loss of self-respect, dignity, and confidence", the Tribunal awarded $15,000.00. The Tribunal also ordered that the Respondents were to develop a workplace human rights policy that included the duty to accommodate and to provide mandatory human rights training throughout the organization.
What this means to you?
Although the question of whether caring for an
elderly parent can form the basis of a complaint of family status
discrimination is an emerging and arguably novel legal area, one
take-home message is not new: an employer must not "look
away" under the guise of respecting an employee's privacy
when a question arises as to whether there is a need to
accommodate. As always, the specific facts of the case must be
examined to determine whether discrimination exists and whether the
employer accommodated to the point of undue hardship.
In this particular case, the Applicant was clearly dealing with family circumstances that required him to either be completely absent or to work away from the office. ZRV was chastised for not engaging in a discussion with the Applicant with respect to the Applicant's needs and in what ways he could possibly be accommodated. The Tribunal noted that ZRV was aware of the ongoing family responsibilities that the Applicant had but that it did not engage in this dialogue. It is certainly important for employers to respect any privacy issues that an employee may have with respect to his or her family obligations, but at the same time, if there is an issue that has arisen which an employer is aware, it should engage the employee in a respectful dialogue to determine what, if any, steps can be taken in order to assist the employee in dealing with the issues.
What is also noteworthy from this decision is the distinction that the Tribunal made between making a choice to care for an elderly adult and being required to care for an elderly adult. While there are choices involved as to how a parent cares for a child, there can be no debate that the parent is required to care for a child. It will be interesting to see whether the courts and tribunals will adopt the same perspective when dealing with issues arising from caring for an elderly patient. If this decision is any indication, such is likely to be the case.
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.