Recent HRTO case indicates new direction for family status discrimination claims

Written on behalf of Peter McSherry Law Office
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In its recent decision in Misetich v. Value Village Stores Inc., the Human Rights Tribunal of Ontario (HRTO) declined to follow existing case law on family status discrimination and appears to have embarked on a new direction. This decision raises questions on the status of the law on such discrimination.

What Happened?

The employee in question filed a human rights complaint claiming that a proposed change to her work schedule intended to accommodate her physical restriction discriminated against her on the basis of family status. In short, she argued that was the primary caregiver for an elderly parent and the amended schedule prevented her from carrying out these responsibilities.

The employee had been hired as a part-time sales clerk in April 2006, working retail in the front of the store. Around June 2010, she moved to a “production” position in the back of the store, working more hours in a more physically demanding role. In January 2013, the employee developed repetitive strain injury to her left hand and arm. Her family doctor identified some physical restrictions including bending and twisting or repetitive movement with her wrist and arm. In response, the employer offered her temporary, modified duties that would fit her physical restrictions, back at the retail portion (front) of the store. The employee was advised that her shifts and working hours would change.

The employee declined the employer’s offer of modified duties stating that the amended hours would place a hardship on her as she was responsible for preparing evening meals for her elderly mother:

I am available to work 7 30 – 4, 8 – 4 30 or the occasional 10 – 6 30 shift (cash) Mon. – Fri. I am unable to work evenings, weekend or on call shifts. To try and force me to work these shifts would completely change the terms of my employment. I care for an elderly (86 year old) parent & my “family status” is such that I can only work the above mentioned shifts.

In response, the employer requested medical evidence from the employee regarding her eldercare responsibilities, including confirmation that:

  1. The employee was the primary caregiver for her mother requiring elder care;
  2. The mother is unable to safely prepare evening meals for herself;
  3. There is no one other than the employee who is able to prepare evening meals for the mother;
  4. The employee has taken all reasonable steps to “self-accommodate and/or resolve the conflict” created by the mother requiring care.

The employee responded in turn, indicating that she was simply seeking to work the same schedule she had been working prior to requesting accommodation for her physical restrictions. The temporary changes to her schedule made it impossible for her to meet her elder care obligations. She further found the need to provide evidence that she had taken all reasonable steps to resolve the “conflict” insulting and offensive, stating that:

My elderly parent has not created any “conflict” with respect to my work duties or shift times; Value Village has created the conflict by changing my normal work hours as a result of my work-related injury

The employee declined to provide additional information, telling the employer that she refused to share her elderly parent’s confidential and private medical information with them. Despite this, her manager again requested that the employer provide “bona fide evidence (medical or legal) to verify working evenings, weekends and/or ‘on call’ shifts would cause [her] undue hardship due to these responsibilities”. The employee was given 10 days by which to comply with these directives.

Eventually, the employee provided the employer with a doctor’s note which stated,

This is to confirm that [the employee] cannot work outside her normal hours because she has to take care of her mother.

The employer did not accept this doctor’s note as it came from the employee’s doctor rather than her mother’s doctor. The employer requested additional information that there were no reasonable alternatives available to the employee with regards to her mother, and confirmation that the employee was required to care for the mother after 5pm so as to prevent a “serious compromise” to the mother’s health.  The employee was additionally informed that her failure to cooperate might be viewed as insubordination, which could jeopardize her employment.

Eventually, after additional back and forth communications between the parties, in which the employee continued to seek clarification about the information being requested by the employer and the employer continued to request confirmation that there was no other option for the care of the employee’s mother, the employee was terminated.

What is Family Status Discrimination?

Ontario’s Human Rights Code protects the employment of individuals in a parent-child relationship.  Employers cannot discriminate against a person because he or she is caring for a child or parent.

The leading decision on family status discrimination is Johnstone v. Canada (Border Services Agency),  which laid out a test to establish discrimination on the basis of family status.  In Johnstone, the family responsibilities included care of a child, rather than an elderly family member. In that decision, in order for the employee to be able to claim discrimination on the basis of family status, she had to establish that:

  • The child was under her care and supervision;
  • The childcare obligation engaged her legal responsibility for that child;
  • She had made reasonable efforts to meet this childcare responsibility through reasonable alternative solutions, but no such solutions were available;
  • A workplace rule or requirement was interfering with her childcare obligations in a manner that was “more than trivial or insubstantial”

The Tribunal’s Reasoning

Johnstone  was decided in 2014, and since then, the test has been applied to many cases involving family status discrimination claims.

In this case, the HRTO declined to apply the “Johnstone test”. The Tribunal felt, strongly, that it is problematic to apply a different test for family status discrimination than that which was applied to other forms of discrimination. This different test resulted in inconsistency and uncertainty in the law, and different outcomes depending on which test was followed. Moreover, the Johnstone test created a higher threshold for establishing discrimination since it required a caretaker to show that their childcare obligations engaged their legal responsibility to care for a child, rather than simply engaging their personal choice. The Tribunal noted that there might be many obligations that caregivers have that do not result from legal responsibilities, but that are still fundamental to the parent/child relationship. Further, the Tribunal stated that the test for “legal responsibility” would be challenging to apply in the context of eldercare. The responsibility of an adult child to care for their elderly parent is not as clear as a parent’s legal responsibility to care for a minor child. Lastly, the Tribunal felt that an employee should not have to establish that he or she could not “self-accommodate” and deal with a potential adverse impact caused by a workplace rule in order to prove discrimination.

In lieu of applying the Johnstone test, the Tribunal suggested a different framework:

  • The employee must do more than establish a negative impact on a family need. Rather, the negative impact must pose a real disadvantage to the parent/child relationship, the responsibilities that flow from that relationship, and/or the employee’s work;
  • The impact of the workplace rule must be assessed contextually and may include an assessment of the other options available to the employee;
  • Once the employee establishes discrimination, the onus shifts to the employer to establish that the employee cannot be accommodated without causing undue hardship.

The Tribunal emphasized that the employee must cooperate in the accommodation process, provide the employer with sufficient information about their family needs, and working with the employer to identify solutions to resolve the work-life conflict.

No Family Status Discrimination Established

Ultimately, the Tribunal found that the employee had failed to establish discrimination on the basis of family status.

Over a period of 10 months, the employer had requested medical information from the employee about her mother’s care in order to fully understand whether the employee was the primary caregiver, what care her mother required, whether the care was essential to the mother’s health and safety, and whether there were any alternative means of providing this care.

In response, the employer provided little or no information to the employer, believing that the employer was not entitled to any further private information about her mother.

The HRTO stated:

The applicant baldly asserted to the respondent that the change in hours discriminated against her on the basis of her family status. While the applicant made this assertion, she provided no information to the respondent about the nature of her eldercare responsibilities. The only information that she gave was that she provided evening meals for her mother.

The applicant’s ability to provide evening meals for her mother was not adversely affected by the requirement to work days, evenings and weekends. The applicant could have worked these shifts and provided evening meals for her mother, when required, in the same way that she was able to provide a meal in the middle of the day. As a result, the applicant has failed to establish discrimination. In light of this ruling, it is not necessary to consider the issue of accommodation.

What Does this Mean?

As employers and employees each struggle to achieve “work-life balance”, there will undoubtedly continue to be complaints and claims made about alleged discrimination on the grounds of family status.  It will be interesting to see what will happen given the new direction the HRTO took in this case. Based on this decision, it appears as though the HRTO will look beyond the question of whether a caretaker has a legal responsibility to care for a parent or child, and rather, will apply a more contextual, fact based approach to evaluating requests for changes to schedules or other workplace logistics owing to family responsibilities.

We will continue to follow developments in this matter, and provide updates as needed.

If you have questions about your rights at work, or about balancing your family care responsibilities and your responsibilities to your employer , contact Peter McSherry by phone at 519-821-5465 or by e-mail to schedule a consultation.