Written on behalf of Peter McSherry
Human Rights – Family Status
The law is beginning to catch up to the modern struggle of work-life balance, as many employees seek to maintain both a fulfilling career and family responsibilities. We’ve previously blogged about how the Human Rights Tribunal has been treating situations where employees claim they have been discriminated against by their employer due to their family responsibilities. This week we return to this subject to discuss it in greater detail.
Ontario law offers protections to individuals who are adversely treated in the workplace due to “family status” (i.e. due to rights and obligations related to family life, such as child care or care for an elderly or sick parent)
Where a person feels that they have been discriminated against or otherwise adversely treated at work due to their family status, they can either file a complaint to the Ontario Human Rights Tribunal (Tribunal), or can sue by civil action in court where there are grounds to do so.
Federal v. Provincial Employers
This blog relates only to workplaces that are governed by Ontario law. If you work in an industry governed by federal law, such as radio and television broadcasting, inter-provincial transport, or if you are employed by the federal government itself, you are subject to different legislation and the remedies outlined here do not apply.
It is important to note that not every example of adverse treatment on account of family issues such as child care or the need to care for an elderly parent will lead to a finding discrimination due to family status.
What is Family Status Discrimination
There are several questions worth examining within the broader concept of family status discrimination in the workplace. The first is what the appropriate test for determining there has been an incident of family status discrimination ? The second, which is related to the first, is, what are the correct tests to be specifically applied to situations involving issues of childcare and care for the elderly.
The Ontario Human Rights Code does not define what rights are included within “family status”. Courts and tribunals, however, have done so over years of examining this issue.
“Family status” has been defined to include “duties and obligations that may arise within the family”, which includes “the relative status of who one’s family members are: the particular circumstances and characteristics of one’s family and, the duties and obligations that may arise within the family”.
Family status includes both a biological relationship (i.e. a biological mother and father) and “by placement” (i.e. anyone who is acting in place of a parent). It includes “the whole essential social relationship of obligation and dependence between those acting as parents, and those who are children, with respect to care”. This includes the care-obligated parent and the care-dependent child”.
The Legal Test
In order for an employee to establish that they have been subject to discrimination at work based on their family status, they must first establish a “prima facie” case (i.e. show that, in the absence of any evidence from the employer, their own evidence is enough to show a human rights violation). This is always the first hurdle of any human rights complaint, and is generally considered to be a low bar.
In the case of workplace discrimination, the employee must show that a workplace rule had an “adverse impact” on them. .
An employer rule, for example, which requires all employees to work fixed hours from 8 a.m. to 4 p.m. may be met by opposition to a single mother or father who is required to take their child to day care each morning, which opens at 8 am, and then drive to work. That parent cannot possibly arrive at work each day at the appointed hour.
The existence of the fixed hours rule would typically be enough to show a “prima facie” case in the above example. The employer would then have to prove that it does not treat that parent adversely due to family status, which is unlikely. The employer would then also have to show that it cannot accommodate the parent’s later arrival to work to the point of undue hardship. This could be done, depending on the context of the employer’s business.
If the parent, for example, was the sole employee and was required to input data every morning at precisely 8 am, which was vital to the shipping of orders for the day’s business, then the employer may very well be able to show it has accommodated the parent to the point of undue hardship. However, this would be a very unusual fact situation. It is rare that an employer has exhausted most possible work-arounds to address an employee’s family-related requirements. Usually, the employer will able to show some degree of accommodation in such a context, by, for example, appointing a co-worker to deal with the data input, or any other significant issues that must absolutely be done within the relevant time period, through requesting extra time be worked at the end of the day, or through adjusting the parent’s pay to reflect shorter hours worked.
Generally speaking, a discrimination claim on the basis of family status will proceed as follows:
- The employee must show that there is a real disadvantage to the parent/child relationship and the responsibilities that flow from that relationship, and/or to their work;
- A contextual assessment of the impact of the questioned workplace rule will be undertaken. This may include consideration of other supports available to the employee (such as the availability of child care);
- Once the employee proves a prima facie case, the onus shifts to the employer to demonstrate that it cannot accommodate the employee to the point of undue hardship; and
- The employer’s obligation of accommodation requires the cooperation of the employee as part of a joint process to try and address the situation.
As is the case with any human rights remedy, the employee may be able to recover damages for personal embarrassment and suffering, lost income, and reinstatement.
Some examples of cases where discrimination on the basis of family status was found, and the employee in question was awarded damages include:
- family status was found to have led to the denial of a promotion due to child care responsibilities, for which compensatory damages were assessed at $1,500. An employer was liable for $20,000 in damages where the employer refused to accommodate the family needs of an employee to care for his mother’s son, who was ill due to a difficult pregnancy and their prematurely born infant..
- As we’ve blogged about before, damages of $10,000 were awarded where a termination was found to have been due in part to the employee’s need to care for his children due to spouse’s illness.
An employee received $20,000 after their employer was found to have failed to accommodate the employee’s child care needs to adapt to the newly imposed work schedule following a return from maternity leave. The employer was also found to have refused to reinstate the employee to the position of office manager on her return to work.. The damages were later upheld by the Ontario Court of Appeal.
If you think you are being discriminated against in the workplace due to your childcare or other family responsibilities, it is important to obtain upon prompt and competent legal advice from a knowledgeable employment lawyer. Contact the offices of Guelph employment lawyer Peter McSherry. We regularly advise employees on their rights in the workplace. We review, advise on, and help employee negotiate the terms of their employment, including any accommodation required as a result of family obligations. Contact us online or by phone at 519-821-5465 to schedule a consultation.
 This definition was accepted on appeal but the remedy was denied due to a saving provision of the Nova Scotia statute.