Now that the school year is in full swing, family and childcare
responsibilities have increased. This is a good time for employers
to prepare for family status accommodation requests.
Under the Ontario Human Rights Code (the
Code), employers, unions, landlords and service providers
have a duty to accommodate based on a person's family status.
According to the Code, "family status" is
defined as "being in a parent and child relationship."
The definition also includes parent and child "type"
relationships that are based on care, responsibility and
In 2014, the Federal Court of Appeal upheld findings of
discrimination on the basis of family status in
two cases: Canadian National Railway Company v Seeley and
Canada (Attorney General) v Johnstone. Both cases involved
mothers who requested accommodation from a work schedule or an
assignment that would have left their children without sufficient
childcare. The Federal Court of Appeal affirmed the Canadian Human
Rights Tribunal's decisions that the employers had failed to
search for reasonable solutions for their respective employees as
part of their duty to accommodate. However, the court indicated
that employers are only required to consider requests for
accommodation for legally required family care. Thus, requests to
leave work early to take one's children to extra-curricular
activities will not usually give rise to a legal duty to
Accommodation is a shared responsibility and employees also have
an obligation to pursue reasonable solutions. However, the duty to
accommodate requires that an employer conduct a thorough
examination of the individual's circumstances. As an employer,
the following steps are recommended concerning family status
consider all requests for
accommodation in good faith;
only request information that is
needed and keep it confidential;
avoid jumping to conclusions or
rushing to a solution;
document all communication and
request that the employee provide the
employer with information about all efforts she/he has made to
reconcile the competing work and family obligations; and
follow up and manage the
communication concerning the accommodation.
When in doubt, it's best to ask questions and assess all the
options before coming to a decision. Your legal requirements may
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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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