The Ontario Human Rights Tribunal has crafted yet another plot twist in the evolving legal test for family status discrimination. Over the past few years courts and human rights tribunals have debated the appropriate prima facie test for establishing family status discrimination. Prima facie is a latin term meaning "at first sight" and, if proven, establishes a baseline level of fact or a presumption that must be rebutted. The recent case of Misetich v. Value Village Stores Inc. ("Misetich") from the Ontario Human Rights Tribunal runs directly contrary to recent case law and reignites the debate.
Prior to the Federal Court of Appeal's decision in Johnstone, blogged by CCP here, there was an ongoing debate as to whether the legal test should be more restrictive (as set out by the British Columbia Court of Appeal in Campbell River) or a liberal approach (as adopted by the Canadian Human Rights Tribunal in Brown v. Canada and Hoyt v. Canadian National Railway). The Federal Court of Appeal in Johnstone confirmed that a liberal approach is appropriate and outlined the following requirements for an employee to establish a prima facie case of family status discrimination:
- that a child is under his or her care and supervision;
- that the childcare obligation at issue engages the individual's legal responsibility for that child, as opposed to a personal choice;
- that he or she has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible; and,
- that the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation.
In this instance the facts of the case involved childcare but it is generally understood that these 4 requirements could also apply to family related needs such as eldercare. As recently as January 2015 Justice Healey of the Ontario Superior Court of Justice adopted the Johnston approach in the decision Partridge v. Botony Dental Corporation, blogged by CCP here. At the time it was thought that the debate, at least in Ontario, was relatively settled.
In Misetich an employee of Value Village alleged that a proposed change to her work schedule to accommodate her physical restrictions discriminated against her on the basis of family status, because of eldercare responsibilities. Ms. Misetich worked as a part-time store clerk since April 2006 but was moved into a production position around June of 2010. In addition to the position change, her hours were adjusted from days, evenings, and on call to straight day shift Monday to Friday. To accommodate a repetitive strain injury in January 2013, the employee was offered a temporary modified role similar to her original position. The role focused on customer service at the front of the store but required variable shifts and hours. Ms. Misitech declined the offer stating that the hours interfered with her ability to care for her elderly mother. In response, the employer requested evidence that mirrors the test set out in Johnstone:
- That she is the primary caregiver for the parent requiring elder care;
- The parent requiring elder care is unable to safely perform the duties described;
- There is no one other than yourself who is able to provide the care described; and
- You have taken all reasonable steps to self-accommodate and/or resolve the conflict created by the parent who requires elder care.
After multiple failed attempts by the employer to obtain the above information, Ms. Misetich was terminated from her employment.
Before assessing the facts of this case the Tribunal reviewed the case law summarized above. The Tribunal set out the wide ranging tests for cases involving childcare obligations (i.e. Johnstone and Campbell River), and also reviewed cases that involve eldercare responsibilities. The Tribunal, with the assistance of submissions from the Ontario Human Rights Commission, took issue with "the notion that there is a different test for family status discrimination than for other forms of discrimination" and Johnstone's requirement that the issue must engage a legal responsibility. Furthermore the Tribunal found that the tests "conflated the test for discrimination and accommodation" and disagreed that an applicant must establish the inability to self-accommodate in order to prove discrimination.
In this case, Vice-Chair Scott provides the following analysis for establishing family status discrimination in employment:
 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...
 Assessing the impact of the impugned rule is done contextually and may include consideration of the other supports available to the applicant. These supports are relevant to assessing both the family-related need and the impact of the impugned rule on that need. For instance, if the applicant is a single parent, both the family-related need and the impact of the impugned rule on the family-related need may be greater.
 Considering the supports available to an applicant may appear to some to be akin to considering whether an applicant can self-accommodate. It is different in a fundamental way. Requiring an applicant to self-accommodate as part of the discrimination test means the applicant bears the onus of finding a solution to the family/work conflict; it is only when he/she cannot that discrimination is established. This is different than considering the extent to which other supports for family-related needs are available in the overall assessment of whether an applicant has met his/her burden of proving discrimination.
The above analysis appears to soften the stance taken in Johnstone, and will allow for employees to more easily establish family status discrimination. Rather than the issue flowing from a legal responsibility, the responsibility can flow from the nature of the relationship. Also, the negative impact of the rule is done in conjunction with the available alternatives. How exactly this analysis is done is unclear but it appears that through this analysis if an employee can self-accommodate then discrimination may still be established. This "contextual" approach will undoubtedly cause employers headaches and confusion.
At the conclusion of the hearing the Tribunal determined the applicant failed to provide her employer any evidence of her eldercare responsibilities, other than preparing meals, and therefore could not establish that the proposed modified shifts was discriminatory on the basis of family status.
This decision is at odds with the Tribunal's previous acceptance of Johnstone and may be appealed. CCP will be keeping a close eye on this decision and whether it is appealed or followed by other courts and tribunals. If you are struggling with how to properly assess a request for family status accommodation, contact a member of the CCP team for assistance.
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