Employment and Labour

Law SEMINARS | 2013

The Evolution of “Family Status” Accommodation:

Practical Tips for Employers

By Anna Abbott

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The Ground of Family Status

Employment

5. (1) Every person has a right to equal treatment with

respect to employment without discrimination because of

race, ancestry, place of origin, colour, ethnic origin,

citizenship, creed, sex, sexual orientation, gender

identity, gender expression, age, record of offences,

marital status, family status or disability

OHRC: Policy and Guidelines on discrimination because of family status

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The Ground of Family Status

“family status” means the status of being in a parent

and child relationship

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The Ground of Family Status

• Raises complex and difficult issues for employers

related to the treatment of caregivers in the

workplace

• Accommodation of “family status” usually relates to

the needs of a caregiver

• childcare

• eldercare

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Accommodation in Employment

The principle of accommodation applies to all

grounds under the Ontario Human Rights Code,

but accommodation in employment most often

relates to the following grounds:

• Age

• Creed (religion)

• Sex (pregnant women)

• Family status (care-giving responsibilities)

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Family Status Accommodation

• Employers have a duty to consider whether they

can make adjustments to workplace policies and

procedures to accommodate needs related to

family status

• May include flexible scheduling, permitting

employees to take leaves of absence to care for

family members who are ill or have a disability,

or providing access to alternative work

arrangements

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Legal Test for Accommodation

• Step 1: Onus is on employee to prove “prima

facie” discrimination.

• Step 2: Once proved, onus then switches to the

employer to prove that the requirement is a bona

fide occupational requirement (BFOR) and that

they attempted to accommodate to the point of

undue hardship

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Legal Test for Accommodation

Step 2 breakdown:

• Purpose rationally connected to job performance

• Honest and good faith belief that it was necessary

• Standard reasonably necessary and impossible to

accommodate without undue hardship

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What is Undue Hardship?

Undue Hardship?

• Consideration under the Human Rights Code

• Cost

• Outside sources of funding

• Health and safety

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Accommodation Process

Accommodation has a procedural aspect and a

substantive aspect

• If an employer fails to go through an appropriate accommodation

process, it will have breached the Code even where it can show

that it would not have been able to accommodate the employee

without undue hardship

•

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Family Status: where we were then

Differing opinions:

1. Must result in serious interference with family

duty – if nothing extraordinary about employee’s

position, no discrimination (BC Court of Appeal, Campbell

River)

2. All protected Grounds should be treated the

same (Ontario Human Rights Commission, Federal Court of Appeal)

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Family Status: where we are now

• Canada (Attorney General) v. Johnstone, 2013

FC 113 (January 2013)

• Canadian National Railway and Denise Seely,

2013 FC 117 (February 2013)

• Devaney v. ZRV Holdings Ltd., 2012 HRTO 1590

(August 2012)

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Canada (Attorney General) v. Johnstone

Facts:

• Fiona Johnstone was border services officer

working rotating shifts, husband also border

services officer

• Required fixed shifts to meet childcare needs

• Loss of benefits (pension, training,

advancement) as fixed shifts only available to

part time employees

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Canada (Attorney General) v. Johnstone

Factors against CBSA:

• No individual assessment of Johnstone’s case

• Allowed accommodation for religious reasons,

but ignored Johnstone’s request

• Viewed family obligation as a choice

• Operational concerns were “impressionistic

assumptions” (inundated with requests, too

costly, destructive to 24 hour operations)

• No accommodation policy or training

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Canada (Attorney General) v. Johnstone

Justice Madamin: “childcare obligations arising in

discrimination claimed based on family status must

be one of substance and the complainant must have

tried to reconcile family obligations and work

obligations”

Factors for Johnstone:

• Tried to arrange care with family, and was

successful for some shifts

• Daycare hard to find outside regular hours

• Husband also worked shifts

• Provided options to CBSA 16

Canada (Attorney General) v. Johnstone

Held:

• Discrimination on the basis of ‘family status’ will

be made out where an employers rule

“interferes with an employee’s ability to fulfill

a substantial parental obligation in a realistic

way”

• CBSA discriminated against Johnstone by failing

to accommodate her childcare responsibilities

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Canada (Attorney General) v. Johnstone

Held:

• CBSA failed to justify that variable shift policy

was a BFOR

• Awarded lost wages, pension contributions,

$15,000 general damages, $20,000 for wilful

reckless conduct of CBSA

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CNR and Denise Seely

Facts:

• Long time employee with CN as freight train

conductor residing in AB, on laid off status

• Recalled for temporary work in BC

• Employment terminated when she failed to

report because of childcare responsibilities

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CNR and Denise Seely

Factors against employer:

• Never responded to request for accommodation

• Did not provide details of job including duration,

accommodation, working conditions

• Did not follow its own extensive accommodation

policy

• Put employee in situation of choosing between

employment obligations and childcare duties

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CNR and Denise Seely

Factors for employee:

• No immediate family nearby

• Daycare during standard hours only

• Husband away 14 to 24 hours at a time

• Requested accommodation

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CNR and Denise Seely

Held:

• CN discriminated against Seely on the ground of

family status and failed to provide reasonable

accommodation

• Compensation for loss of wages and benefits,

$15,000 for pain and suffering and $20,000 for

reckless conduct by CN

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Eldercare: Devaney v. ZRV Holdings Ltd.

Facts:

• Architect employed with company from 1982 to

termination of employment in 2009

• Substantial care responsibilities for ailing mother

• Employer would not allow flexible work schedule

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Eldercare: Devaney v. ZRV Holdings Ltd.

Factors against employer:

• Attendance policy unreasonable/too strict

• No performance issues

• Failure to engage in dialogue with employee

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Eldercare: Devaney v. ZRV Holdings Ltd.

• Factors for employee:

• Mother on waiting list for care home, care not

available on 24 hour basis

• Required income for her care

• Available by phone and email

• Hired by client on project because of good job

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Eldercare: Devaney v. ZRV Holdings Ltd.

Held:

• Company's strict attendance policy requiring

Devaney to work out of the company's office had an

adverse impact on him as a result of his family

responsibilities. By failing to engage in a dialogue

with Devaney about his needs, the employer

contravened the Code.

• Adversely impacted on the basis of a

requirement imposed by his or her status as a

caregiver. (If an adverse impact is deemed to relate

merely to an employee's preference or choice,

no prima facie case will be established)

• Awarded $15,000 in general damages

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Accommodation Process

Employee obligations in accommodation process

1. Make reasonable effort to find outside resources

2. Advise employer of need for accommodation

3. Provide employer with sufficient information

4. Provide suggestions for accommodation

5. Allow employer reasonable time

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Accommodation Process

Employee obligations in accommodation process

6. Co-operate with employer

7. Facilitate implementation of accommodation

8. Advise employer if needs change

9. Accept reasonable accommodation

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Accommodation Process

Employer obligations in accommodation process:

1. Determine if employee requires accommodation

2. Consider all possible accommodations

3. Discuss options with employee

4. Respond within reasonable time

5. Keep written record

6. Maintain confidentiality

Accommodation Process

Employer obligations in accommodation process:

7. Request information

8. Consider employee’s accommodation suggestions

9. Follow-up with employee

10. Modify accommodation if required

11. Explain to employee why accommodation impossible

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Accommodation Policy

Contents of Policy:

• Statement of Commitment by management

• Objectives

• Request for Accommodation (who, how, contents)

• Provision of Information (medical information)

• Privacy and Confidentiality

• Accommodation Planning (contents of accommodation

plan, timelines, goals, accountability)

• Undue Hardship (basis of assessment, recourse,

implementation)

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Recommendations

• Be proactive with general planning and

preparation

• Accommodation policy

• Training for managers and supervisors

• Employee education

• Acknowledge and accept that you have a

positive duty to accommodate an employee to

the point of undue hardship

• Be proactive and sensitive when dealing with

specific problems

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Recommendations

• Engage in dialogue with employee re needs

• Assess on an individual basis

• Be wary of inflexible work hours and rigid

attendance management policies

• Document the process

• Apply policies and procedures consistently

• Gather evidence of undue hardship

• Policies must be reasonable

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Thank You

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