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The Ontario Human Rights Tribunal says it has “clarified” its test for discrimination on the basis of family status. Noting it is not bound by the decisions of other tribunals or courts outside Ontario, the Tribunal has now gone back to basics, but whether the test is any more clear remains to be seen. Certainly its application will continue to have employers scratching their heads (and maybe pulling out their hair!).

In Misetich v. Value Village, the applicant argued that her responsibility to care for her elderly mother restricted her working hours – she claimed she could work no weekends and no later than 5:00 p.m. – because she had to provide her mother with meals. Value Village was skeptical. They asked for details such as whether other forms of care might be available; whether the applicant had done everything reasonable within her control to find alternate care; and whether her mother’s health and safety would be jeopardized without the applicant’s care.

All of those questions were reasonable, given the findings of the Federal Court of Appeal’s companion cases on this issue, Johnstone and Seeley.  In those cases, reviewed by the Tribunal, the FCA held that childcare obligations protected by the ground of family status are only those which a parent cannot neglect without engaging some legal liability.

The Tribunal also reviewed the British Columbia Court of Appeal’s decision in Campbell River, which held that discrimination on the basis of family status occurs only where a term or condition of employment results in “a serious interference with a substantial parental or other family duty or obligation.”

There have also been a number of decisions by arbitrators in the grievance arbitration jurisprudence, some of which have had wide application (e.g. Bharti, Power Stream[1]) and these were also considered by the Tribunal.

After reviewing these lines of case law, the Tribunal acknowledged the tension between family and work responsibilities:

[42] In my view, these cases have attempted to narrow the ambit of the ground of family status by developing specific tests for discrimination on that basis. This was done because of the real concern that not every negative impact on a family obligation, or conflict between a family and work obligation, is discriminatory. I agree with that concern. Where I part ways with these decisions is the notion that there is a different test for family status discrimination than for other forms of discrimination.

The Tribunal noted that the various tests for family status discrimination have resulted in inconsistency and uncertainty in the law, with the result that the test has become higher than for other kinds of discrimination. The Vice-Chair also referred to the fact that many obligations between parent and child may not emanate from legal responsibilities, but are nonetheless essential to the relationship. This is particularly the case with elder care, as an adult child’s legal responsibility for a parent is not nearly as clear as a parent’s obligation to a minor child. Finally, the Tribunal specifically disagreed with the arbitrator’s finding in Power Stream that a claimant must establish that s/he could not self-accommodate before there can be a finding of discrimination.

Ultimately, the Tribunal set out its test – the traditional test for discrimination – as follows:

[50]  The test for discrimination requires an applicant to establish that he or she is a member of a protected group, has experienced adverse treatment, and the ground of discrimination was a factor in the adverse treatment. Discrimination is not made out simply because the impugned treatment has a negative impact on a member of a protected group. …

[54] In order to establish family status discrimination in the context of employment, the employee will have to do more than simply establish a negative impact on a family need. The negative impact must result in real disadvantage to the parent/child relationship and the responsibilities that flow from that relationship, and/or to the employee’s work. For example, a workplace rule may be discriminatory if it puts the employee in a position of having to choose between working and caregiving or if it negatively impacts the parent/child relationship and the responsibilities that flow from that relationship in a significant way.

The Tribunal acknowledged that the supports available to an applicant are relevant, but not to determine whether discrimination exists:

[56] Considering the supports available to an applicant may appear to some to be akin to considering whether an applicant can self-accommodate.  It is different in a fundamental way. Requiring an applicant to self-accommodate [as per Power Stream] … means the applicant bears the onus of finding a solution to the family/work conflict; it is only when he/she cannot that discrimination is established.

Rather, the Tribunal held that once discrimination is established, it is appropriate to consider whether the applicant co-operated in the accommodation process by providing information about family needs and working with the respondent to find solutions. It is therefore at this stage that the applicant’s available support systems and resources should be considered.

Ultimately, the Tribunal found that Ms Misetich had not provided her employer with sufficient information about the nature of her elder care responsibilities, and had therefore failed to prove discrimination. The applicant’s only claim to her employer was that she would be unable to provide meals for her mother and the Tribunal found that she could provide meals in the same way that she had always provided noon meals.

It is important to note the Tribunal’s comment that if the information provided at the hearing about the applicant’s mother’s health condition (which does seem quite serious) had been provided to the employer at the time, it may well have triggered an obligation to accommodate. However, during her employment, the employee took the position that her mother’s information was private and refused to share it.

So what are the take-aways for employers?

  1. If you receive a request for accommodation on the grounds of family status, take it seriously.
  2. Employers are entitled to specific information about the nature of the employee’s responsibilities and how the workplace rule negatively impacts his/her ability to meet those responsibilities.
  3. It is not necessary that the family responsibilities engage a legal obligation.
  4. To prove discrimination, the employee must show a “real disadvantage” to the parent/child relationship and/or to his/her work. The workplace rule must “negatively impact the parent/child relationship … in a significant way.”
  5. Once discrimination has been established, the applicant must show that s/he co-operated in the accommodation process by marshalling the supports and resources available – “accommodation is a joint process”.

As always, if you have any questions about family status discrimination, or any other work-related issue, feel free to contact any member of Siskinds’ Labour & Employment Group.

[1] Re Power Stream Inc. and International Brotherhood of Electrical Workers, Local 636  (2008), 180 L.A.C. (4th) 87 (Jesin).

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