The obligation to accommodate family status was initially viewed narrowly. An employer couldn’t discriminate because a worker was a parent. A woman with eight (8) children was equally entitled to be promoted as a man with a stay-at-home wife. Over the years the term family status has matured not only to include the freedom from discrimination because of being a parent but also to include accommodation of parental care obligations.
Accommodation of parental care obligations was first addressed in Health Science Association of British Columbia v. Campbell River and North Island Transition Society, (2004) BCCA 260 (Campbell River). This was a grievance brought by a union claiming that the employer discriminated against its member when it changed her hours of work so as to interfere with her ability to provide her disabled son with after-school care. Medical evidence was introduced during the hearing confirming it was imperative she be involved with her son’s after school care.
While it was determined that the employer had to accommodate Ms. Howard (despite changing her hours of work for genuine business reasons) the Court took a strict approach. An employer was only required to accommodate care obligations when there was a “serious interference with a substantial parental obligation”.
The fall out from Campbell River was only the most egregious violations of parental care obligations would attract an human rights complaint. Ordinary care demands faced by families were not enough; there had to be a substantial parental obligation.
In 2012 – the Ontario Human Rights Tribunal revisited “substantial parental obligation” in Devaney v. ZRV Holdings Limited, (2012) HRTO 1590.
Mr. Devaney was the primary caregiver for his mother; at issue were eldercare responsibilities towards his ailing parent. Mr. Devaney was an architect; he was a solid contributor and made responsible for the Trump Development inToronto. Despite working excessive hours, having happy clients, and successfully completing his work the employer made repeated demands that Mr. Devaney stop working from home. ZRV Holdings insisted only face time in the office mattered; it threatened not to pay Mr. Devaney for any hours he worked from home. When Mr. Devaney’s eldercare responsibilities continued to interfere with his ability to be at work during core hours, the employer terminated his employment and offered him part-time employment.
ZRV Holdings failed to accommodate Mr. Devaney’s care responsibilities; it breached its duty to make meaningful inquiries and explore its obligation to make alternate non-traditional work allowances. The Ontario Human Rights Commission awarded Mr. Devaney $15,000 general damages.
From a legal standpoint the decision is important because the Tribunal found there no basis for a higher test of discrimination in family status cases. Any interference with a parental obligation is grievable. An individual should not have to tolerate some unknown amount of discrimination before they are protected by the legislation.
This was recently confirmed in Attorney General of Canada v. Fiona Ann Johnstone and Canadian Human Rights Commission, 2013 FC 113 (CanLII). Ms. Johnstone worked rotating shifts. When she returned from her second maternity leave she requested fixed shifts in order to accommodate her child care responsibilities.
The employer agreed to the request. However, it relied on its policy and demanded Ms. Johnstone change to part-time status where she would have no healthcare or pension benefits.
On Judicial Review, the Court found the policy was designed to discourage employees from seeking accommodation. Finding in favour of Ms. Johnstone it noted that discrimination occurs when the employment rule interferes with an employees’ ability to fulfill her substantial parental obligations in any realistic way.
The evolution of family status is likely a consequence of the increase in dual income families. Balancing childcare responsibilities, eldercare duties, and a job is fundamentally more difficult where the norm is women work outside the household. Remember,
1. Family Status protects both childcare and eldercare responsibilities.
2. Employers must take a contextual approach to requests for accommodation; each case will be decided on its own merit.
3. Employers can’t hide behind a policy. There must be meaningful discussion about accommodation; its not enough to say, “its our policy”.
