As many of us know, Canada’s population is ageing. For example, in the most recent census (2016), nearly 23% of Canadians are over the age of 60. For this reason, questions about accommodation in the workplace for family reasons have come up more and more.
In Ontario, employers are prohibited from discriminating against employees due to their family status. This includes anything about being in a parent-child relationship: child, parent, step-child, step-parent, and relationships formed by adoption, fostering and lone-parent families. It does not include relationships with siblings, grandparents and grandchildren, aunts, uncles, nieces, nephews, or extended family. It also excludes any type of “chosen families” as well as the diverse support networks developed by persons with disabilities.
So what does this all mean for employers? The Ontario Human Rights Tribunal has clarified how it analyzed this type of discrimination and what employers have to do to make sure they organize their business correctly.
New Discrimination Case on Family Status
In the case Misetich v. Value Village, the employee argued her responsibility to take care of her elderly mother restricted her working hours for her employer. Specifically, she said she could not work weekends or after 5 pm because she had to provide evening meals to her mother.
The employer, over several months, demanded the employee provide information about other forms of care that were available, whether the employee had done everything reasonable to find alternate care for her mother; and whether her mother’s health and safety would be jeopardized without the employee’s care.
The Ontario Human Rights Tribunal ultimately told employers and employees this:
- The employee must first show that there is a negative impact on a family need (remember how we defined “family” above).
- Then, the employee has to show that this negative impact actually resulted in a real disadvantage to the parent/child relationship and the responsibilities it entails and/or to the employee’s work. (For example, the Tribunal said, “a workplace rule may be discriminatory if it puts the employee in a position of having to choose between working and care-giving or if it negatively impacts the parent/child relationship and the responsibilities that flow from that relationship in a significant way” (at para 54))
- Then, the employee has to show that they at least tried to co-operate in the accommodation process (as we have said before on this blog) by providing information about family needs and working with the employer to find suitable accommodation. This includes using any supports and resources available to the employee.
In this particular case, the Human Rights Tribunal decided that the employee had not actually provided her employer with enough information about her responsibilities to care for her mother. So she did not fulfill all three criteria to prove her employer was discriminatory. But, importantly, the Tribunal did say that had the employee provided the additional information about her mother’s health condition to her employer, it probably would have forced the employer to provide an accommodation.
What Does This All Mean?
As we have mentioned in previous blog posts, and as the Tribunal confirmed in this recent decision, “accommodation is a joint process.” Employees cannot select their own accommodation and expect the employer not to ask reasonable, sensible questions about the accommodation.
If an employee of yours has an issue in taking care of their elderly parent(s), you need to make sure you do the following:
- Make sure the employee clearly states they require an accommodation for their child or parent (this means, don’t use gossip or an informal conversation to get information about an accommodation)
- Use the opportunity to talk with your employee to better understand what they are going through.
- You may ask specific questions about your employee’s responsibilities to their parent or child and how their employment is specifically affecting that relationship.
- Once you have gathered that information, you need to determine (along with a dental employment lawyer) whether or not your employee has shown that your workplace rule (like attendance, working specific hours) has actually and significantly disadvantaged their child/parent relationship.
- If yes, then you should provide support and assistance to your employee, determine whether there is anything else the employee can do to solve their problem and work with them to find the best solution. If they refuse to co-operate, talk to DMC, and we can help you with the next steps.
- If not, then you should try and obtain more information and go back to step 4. And, if you end up back here at step 5 and there is still not an actual and significant disadvantage to your employee, contact us to help draft an appropriate response.