Michael Ford (post until Oct. 31/19)
Employment & Labour, Human Rights

Family status discrimination case law in flux: Howden

Family status discrimination claims could be on the rise, Toronto employment lawyer Deborah Howden tells AdvocateDaily.com.

Howden, partner with the Toronto office of Shibley Righton LLP, explains that Ontario’s Human Rights Code prohibits discrimination on the basis of a person’s family status, which covers the relationship between a parent and child.  

And while the number of cases claiming this type of discrimination still trails those involving allegations concerning a person’s disability or sex, she says the gap could be closing.

“I think they will increase in number as parents continue to juggle their responsibilities in increasingly complex workplaces,” says Howden, who adds that the popularity of telecommuting has helped keep the number lower than might otherwise have been expected.

“But it’s still a real problem when telecommuting is not an option,” she adds.

According to Howden, requests for accommodation made for family status discrimination are particularly problematic for employers, because case law in the area remains in flux, as one recent Ontario Human Rights Tribunal (OHRT) decision demonstrates.

In awarding the applicant — a personal support worker — $30,000 for her employer’s failure to accommodate her childcare needs, the vice-chair noted that two tests have been developed for establishing discrimination in family status cases.  

First, a landmark 2014 Federal Court of Appeal case suggested claimants must first demonstrate that they have made reasonable efforts to find alternative solutions and that none were reasonably accessible, and there's an additional barrier to the normal requirement that employers accommodate employees to the point of hardship.

“In essence, it requires self-accommodation as a preliminary step,” Howden explains.

Then, in a 2016 OHRT decision, a vice-chair set a new standard, more in line with the test for discrimination involving other protected grounds under the Code.

“The law is unsettled, so there’s no way for employers to know which test applies,” Howden says. “Practically speaking, the best approach for employers is to use the lower test set in 2016, and consider all reasonable accommodation efforts before making a decision that will negatively impact the employee’s caregiving obligations to their child, or an aging parent.”  

In the most recent case, the OHRT vice-chair said that her conclusion would have been the same had she used either test, finding that the applicant's termination was carried out at least in part because her childcare obligations made her unable to offer more flexible hours.

The woman in the case worked for her employer as a personal support worker from 2013 to 2017 and was the only family member able to meet her special needs child’s school bus after school, according to the decision.

After agreeing to accommodate her childcare needs by giving her the midnight shift, the woman was fired just days before starting her new schedule after she failed to provide enough notice when calling in for a sick day.

The employer’s stated reason was not the real one for the dismissal, the tribunal found, concluding that her limited availability as a result of her childcare needs was at least part of the explanation for the termination.

The decision notes that the employer did not participate in the hearing after initially communicating with the tribunal, before being deemed to have waived its right to appear.

“Though it can be costly, I would encourage employers to always participate in human rights proceedings because if they don’t, they will be deemed to have accepted the allegations, and an adverse ruling can result,” Howden says. “Even if some portion of the claim is true, employers should never accept them undefended. It is important for the tribunal to assess all the available evidence.”

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