It Takes A Village: Ontario’s Human Rights Tribunal and the Lingering Debate over Accommodating Parental Responsibilities

accommodation in the workplace for family commitments

Life as a working parent is never an easy balance. While parents from all walks of life manage to make it work out of necessity, there are inevitably some missed piano recitals or sporting events because of work commitments, and conversely missed work opportunities to ensure a cheering and supportive presence at the next hockey game. Yet when that hockey game is actually a doctor’s appointment, and no one else is available to take the child to the appointment, the priorities naturally shift from work to home.

In law, this is known as ‘family status.’ The Ontario Human Rights Code (the “Code”) defines family status as “the status of being in a parent and child relationship.” In other words, the term can apply to the adult parents of young children, or alternatively the adult children of senior parents. In any event, the Code states that everyone has the right to be treated equally in employment on the basis of family status.

After years of debate, the case law has finally taken a position on how to assess employers’ legal obligations when it comes to accommodating these family status responsibilities, especially when those needs involved young children. In 2014, the Federal Court of Appeal ruled on a case that became the standard situations following, establishing a legal test for family status that would once and for all determine when an employer was obligated to accommodate parental needs, and when parents were forced to make tough decisions.

The Human Rights Tribunal is not a court, and so is not obliged to follow previous court decisions but can instead issue remedies that it best sees fit. It can also apply its own legal tests, and when it comes to family status, the Tribunal has shown that the test for family status accommodation hasn’t quite been put to bed.

The Case

Jessica Simpson was a Personal Support Worker employed by Pranajen Group Ltd., which operated as the Nimigon Retirement Home, for four years. She was also the mother of two small children, the older of which has autism. Because of the child’s needs, it was necessary that an adult meet him when he got off the school bus each day. Pranajen Group was aware of Ms. Simpson’s needs, including the fact that her husband worked through the workday as well as of her son’s autism. As a result, Ms. Simpson’s workday ended at 3 p.m. so that she could attend to her children.

In March, 2017, the employer began discussing moving Ms. Simpson to an evening shift, and she explained that she couldn’t because of her children. Weeks later, she learned that a midnight shift would became available, and said that she would like to apply for it. She explained her childcare needs to the manager in person, and the manager approved her to start working the midnight shift in May.

In late April Ms. Simpson was penalized for failing to adhere to company policy in providing 48 hours notice when she called in sick, even though this was never previously company policy and she was never made aware of any new procedures. Less than a month later, Ms. Simpson was brought into a meeting where she was told that she was no longer eligible to work the night shift because she did not give enough notice when she called in sick. She was invited to provide her availability for other shifts for the Summer, but confirmed with the employer via email that she was unable to work the late afternoon shift on Fridays and Saturdays because of her childcare needs.

Two days after Ms. Simpson e-mailed the employer, her manager phoned her to tell her that she had been terminated. Their reasons for termination were numerous, including “attendance, failure to follow instructions, conduct, creating disturbance [sic], performance, and work quality.” The employer did not offer Ms. Simpson any further explanation, and despite requesting an extension of time to respond to the Tribunal complaint, did not participate in the Tribunal hearing in any form.

Ms. Simpson suffered financially as a result of her termination. She sought medical attention to deal with the emotional trauma of her job loss, and had to take a second mortgage on her home in order to afford her son’s speech therapy. The difficult financial situation placed a strain on her marriage, and even after she found new work she was worried still about being hit with another unexpected termination.

The Tests

In its analysis, the Tribunal acknowledged the history of the case law over family status, and noted that the primary legal tests comes from the case of Canada (Attorney General) v. Johnstone, 2014 FCA 110, where an airport screening officer fought to have her work schedule accommodate her childcare needs without losing her seniority at work. In the Johnstone decision, the Court laid out a four-part test for parents proving that they need accommodation based on family status. The individual must prove:

  1. The child is under his or her care and supervision;
  2. The childcare obligation at issue engages the individual’s legal responsibility for that child, as opposed to personal choice;
  3. The individual has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible; and
  4. The impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation.

Simply put, the test states that employers must accommodate if the parent is responsible for looking after the child, the child is young enough to still require adult supervision, there is no other alternative childcare reasonably available, and the need is more than just a whim or desire. In other words, an employer will not have to accommodate a parent who wants to be at every swimming lesson, but is required to allow parents to take their young children to the doctor when they fall ill.

Yet in a 2016 decision, the Human Rights Tribunal held that the Johnstone test was, in fact, too onerous. In Misetich v. Value Village Stores Inc., the Tribunal decided that instead of the standards adopted in Johnstone, family status discrimination should be treated similarly to other protected grounds of employment such as race, sex, and disability. The individual must be able to prove that they are in a parent and child relationship, that they have experienced adverse treatment, and that that treatment was due, at least in part, to discrimination based on their family status.

In Ms. Simpson’s case, the Tribunal ruled that no matter which test was applied, Ms. Simpson was discriminated against by her employer. Even if the Tribunal did rule that she needed to self-accommodate first, Ms. Simpson had no reasonable childcare alternatives available, and thus needed to be accommodated at work so that she could be home to care for her child. The Tribunal awarded her $30,000 for injury to her dignity, feelings, and self respect.

Lessons Learned

For employers, the lessons are two-fold. While accommodation of family status may be a more recent development in the law, both courts and tribunals take it seriously. Employers are required to accommodate for an individual’s family status needs, and would be wise to consult with an employment lawyer before responding to our rejecting any request for accommodation.

For employees, there are clear protections in the law to address an employee’s family status. If your employer refuses to accommodate a legitimate request or is discriminating against you because of your family obligations, an employment lawyer can help explain your rights and options.

Shaun Bernstein

My experience has taught me the beauty of being able to work fluidly on both sides of employment law. For example, it can be deeply rewarding helping a recently terminated employee achieve a fair settlement that recognizes their contributions to the company, and the situation they have found themselves in. But it is equally as rewarding to be able to help that employer straighten out issues as or even before they arise, and hopefully preventing the need for that employee to have called us in the first place.

I previously ran a blog explaining employment law issues to a wide audience, and am incredibly proud to have twice won Clawbies (Canadian Law Blog Awards) for Best New Law Blog and Best Practitioner Blog.