Written on behalf of Peter McSherry

In Canada, when a person experiences workplace discrimination on the basis of any of the grounds enumerated in the applicable Human Rights Code, they may seek recourse and damages through the provincial Human Rights Tribunal. Grounds of discrimination may include, but are not limited to, age, gender, disability, gender identity and family status.

In a recent Ontario Human Rights Tribunal decision, the former employee of a company alleged that she had been discriminated against on the basis of her family status. The tribunal found the complaint substantiated, and awarded significant damages as a result of the employer’s offensive behaviour.

Employee Becomes Mother’s Primary Caregiver

The facts that gave rise to the complaint of discrimination in Cosentino v Octapharma Canada Inc. arose in early 2020, during the onset of the COVID-19 pandemic. The complainant (“Linda”), was working for the respondent, Octapharma Canada Inc. (“Octapharma”) as a national health sales representative who specialized in hematology, a role she had occupied since 2011. Linda’s mother was diagnosed with cancer in 2020, which would require that her mother undergo chemotherapy and radiation treatment at a local hospital. The only two family members who could assist Linda’s mother (who struggled to communicate in English) were Linda and Linda’s sibling, who had been deemed an essential worker and experienced daily exposure to students.

The hospital where Linda’s mother was being treated advised Linda that they had a pandemic policy that only allowed one person to attend at the hospital with the mother for treatment, and it had to be the same person for each treatment. Linda and her sibling determined that Linda should take on the role of primary caregiver for their mother. Linda’s mother’s oncologist further advised that Linda’s mother’s exposure to the COVID virus should be limited as much as possible, which meant that Linda herself needed to minimize her own exposure to the virus.

Employee Seems Accommodation from Employer During Onset of Global Pandemic

As her mother’s primary caregiver, Linda transported her mother to and from all medical appointments, whether at the hospital or doctor’s office, and provided support to her mother in terms of assistance with laundry, cooking and other household tasks. Linda advised the General Manager of Octapharma in August 2020 that she required family status accommodation as a result of her mother’s illness and her role as caregiver. She further advised that she was able to communicate via her mobile phone or laptop while waiting at the hospital for her mother to undergo treatment such that her daily tasks would be completed, and that she would remain available for virtual/telephone meetings whenever required. In essence, Linda was requesting that she be accommodated by working her role from home while she occupied the role of caregiver for her mother.

As Linda’s position had always been a “field position” (she maintained a home office and only attended at the head office when necessary) she did not view this as a monumental shift from how she had always worked in her role. Moreover, many Octapharma employees had begun working from home at that point due to the pandemic. Octapharma agreed to accommodate Linda by offering flexibility in her working hours and allowing her to take time as-needed to escort her mother to medical appointments, so long as her work was always completed each week. However, within a month of agreeing to accommodate Linda, Octapharma issued her a Performance Improvement Plan that discussed ostensible failings in Linda’s work performance. This was followed by an email on October 21, 2020, in which Octapharma indicated that Linda’s position was now head-office-based and required her to attend at the head office daily.

Employee Seeks Further Accommodation to Provide Care for Mother

This prompted a meeting with the General Manager in October, in which Linda sought further accommodation, as her mother had broken her wrist and had moved into Linda’s home with Linda and her son. She now required additional assistance and support with tasks such as eating, dressing and bathing. Linda requested that she be further accommodated to allow her to continue to work from home in order to take care of her mother and son while continuing to carry out her employment role. Linda was advised in that meeting that she could take “two hours off here and there during the week” to attend to her mother, but that no further accommodation would be forthcoming. Linda explained that it would be extremely difficult for her to satisfy her obligations to her mother and son if she were required to drive, daily, from her home in Woodbridge to the head office in downtown Toronto, at least twice per day.

Furthermore, Linda’s mother’s oncologist had advised Linda that, due to her mother’s ill health and age, she would likely suffer severely if she were to contract COVID, and for that reason her mother’s exposure to the virus should be limited as much as possible. As such, Linda’s “sister, spouse and niece refrained from visiting because they worked in roles where they had daily contact with numerous people”. Linda even cancelled the housekeeper they used to use, in order to limit her mother’s potential exposure to the virus, and her son agreed to continue his education exclusively via online learning for the same reason.

Employer Terminates Employee

In these circumstances, Linda contended that to require her to attend in-person at the head office every day would increase Linda’s own exposure to the virus, and thus would compromise her mother’s health, as Linda was her mother’s primary caregiver. Following the meeting in October 2020, Linda continued to work from home and Octapharma ceased all communication with Linda whether by phone, text, email or virtual meeting, until they sent her a letter terminating her employment on December 3, 2020.

Linda commenced a complaint before the Ontario Human Rights Tribunal in which she alleged that she had been discriminated against in her employment on the basis of her family status. She sought damages for injury to her dignity, feelings and self-respect, as well as damages for lost earnings, benefits and bonuses she would have earned had her employment continued uninterrupted.

Assessing a Complaint of Discrimination in the Workplace

When assessing a complaint of discrimination in an employment context, the complainant bears the onus of demonstrating three things to the tribunal:

1. that the complainant is a member of a protected class;
2. that the complainant experienced adverse treatment; and
3. that the ground of discrimination was a factor in the adverse treatment.

Each of these factors must be proven on the balance of probabilities, which means, essentially, more likely than not.

As noted by the Tribunal in this case, “direct evidence of discrimination is rarely available”, which means that circumstantial evidence must often be relied upon to discern whether discrimination occurred. The Tribunal will weigh all of the evidence in order “to determine whether an inference of discrimination is more probable than the respondent’s claim that there was no discrimination or differential treatment”. In so doing, the Tribunal will consider the credibility and reliability of the witnesses, and those assessments factor into the determination of whether discrimination occurred.

Demand for Employee to Return to Office Was Unnecessary

The Tribunal was satisfied that “the confluence of these circumstances created a situation that meets the definition of obligations under family status. The change to the work conditions required by” Octapharma “constituted adverse treatment … on the basis of family status”. The demand that Linda return to the office, when her role has always been field-based (as acknowledged in a letter written by Octapharma) and with most of Octapharma’s employees were already working from home because of the pandemic, was unnecessary, particularly when Octapharma was aware that this change “would have significantly impacted [Linda’s] ability to continue to care for their mother and ensure the well-being of their son.”

The Tribunal also noted that, although Octapharma claimed that Linda demanded “perfect accommodation”, which they are not bound to offer, this was a misreading of the situation. Rather, Linda had proposed that she be permitted to continue to work from home in order to accommodate her caregiver needs and Octapharma, without offering any alternative, simply refused the request.

Employer’s Refusal to Engage in Accommodation Process Equates to Failure to Fulfill the Duty to Inquire

Octapharma’s refusal to “engage in the accommodation process” equated, in the Tribunal’s view, to “a failure in their duty to inquire fully about the potential accommodation needs of the applicant based on their family status obligations. At no time did they ask the applicant for information in support of the request, so as to better understand what care the mother required or what obligations the applicant had.”

The Tribunal was further satisfied that “in deciding to cease communication with the applicant after they did not comply with the requirement to attend work at the head office beginning on October 26, 2020, the respondent also failed in their duty to provide either procedural or substantive accommodation under the Code based on the applicant’s family status.”

Tribunal Grants Significant Damages Award to Employee Who Was Discriminated Against

Given that Linda had successfully proven that she had been discriminated against on the basis of family status, the Tribunal continued to assess damages for the breach. It was satisfied that Linda was entitled to a significant award for injury to dignity, feelings and self-respect. Linda had been a long-term employee of Octapharma whose role was terminated as a result of discrimination and reprisal, because Octapharma’s behaviour toward Linda had caused both she and her mother (who felt that she was causing her daughter difficulty in her employment, and that it was her fault) significant distress, and all of this had arisen in the midst of a pandemic, “where so many societal changes and concerns were causing high levels of stress for everyone”.

On that basis, Linda was awarded $25,000 in damages for injury to her dignity, feelings and self-respect, in addition to $7,577.07 for lost wages, $6,621.66 for lost benefits and allowances, $13,612 for lost annual performance bonus, and $51,966.15 for lost profit-sharing bonus. Together, Octapharma was ordered to pay Linda damages of more than $100,000.

Contact the Law Office of Peter McSherry for Advice on Discrimination in the Workplace

If you have been discriminated against in your employment, whether on the basis of your age, race, gender, or any other ground enumerated under the Human Rights Code, it is important to seek legal advice and guidance on the discrimination complaint process. At the Law Office of Peter McSherry, our employment law team understands the complexities and nuances involved in such matters, which is why we take time to work closely with our clients to ensure they understand their rights throughout the process. Contact us online or call us at 519-821-5465 to arrange a confidential consultation with a member of our team.