In Canada (Attorney General) v. Johnstone, 2014 FCA 110, the Federal Court of Appeal confirmed that childcare obligations are protected as being part of an individual’s “family status”. The court laid out a four-part test for triggering an employer’s duty to accommodate an employee’s obligations on this basis. A claimant must establish that
- the individual is under his or her care,
- he or she has a legal obligation to care for the individual,
- he or she has made reasonable efforts to meet this obligation through seeking reasonable alternatives, but no such alternative is accessible, and
- the workplace interferes with the obligation to a degree that is more than trivial or substantial.
Since it was set down in 2014, the Johnstone test was widely accepted as the law in both provincial and federal jurisdictions. Last fall, however, the Human Rights Tribunal of Ontario departed from this standard in its decision in Misetich v. Value Village Stores Inc., 2016 HRTO 1229.
Tonka Misetich alleged that a proposed change to her work schedule at Value Village discriminated against her on the basis of her obligation to care for her elderly mother. Misetich had previously sought accommodation on the basis of a physical injury; however, when Value Village provided a modified duties plan, she refused to take on evening, weekend or “on call” shifts due to her eldercare responsibilities. When Value Village requested information about the employee’s accommodation needs, including confirmation of her mother’s need for care, Misetich refused, arguing that the requests were insulting. Ultimately, after Misetich refused a final request to provide the necessary information, she was dismissed for having abandoned her position.
The Tribunal found that courts have inconsistently applied the test for discrimination, setting a higher threshold for finding discrimination based on family status than for other forms of discrimination. It held that the test for family status under the Human Rights Code should be no different than any other code ground: the employee must establish a real disadvantage to the relationship and the responsibilities that flow from it. It does not require a more restrictive test.
The Tribunal further held that when evaluating whether or not there has been discrimination based on family status in the employment context:
- The employee must show a negative impact based on a family need that results in a real disadvantage to the parent/child relationship and the responsibilities that flow from that relationship, and/or to the employee’s work.
- Assessing the alleged impact must be done contextually and may include consideration of other supports available to the applicant.
- If the applicant can prove discrimination, the onus shifts to the employer to show that the applicant cannot be accommodated without undue hardship.
The Tribunal held that Misetich failed at the first step because she had made no effort to demonstrate that her schedule would negatively impact her obligations to her mother.
Although the law on family status discrimination in Ontario clearly remains unsettled, Misetich provides guidance both for employees with family obligations and for their employers. It is not sufficient for an employee to simply state that the workplace impacts his or her ability to provide childcare or eldercare; there must be evidence that there is a negative impact that results in a “real disadvantage”. Employers must seek particulars about an employee’s family status needs and must provide reasonable accommodation, though it need not match the employee’s preference.
Lessons for Employees
The impact that work has on childcare or eldercare obligations are not necessarily reasons for an employer to accommodate. It must go further than this. Prior to requesting accommodation from an employer you are wise to first seek employment law advice. Your request should be drafted in such a manner so that it contains accurate facts that support your request for accommodation. If it does not, then no accommodation may be required.
Lessons for Employers
A request for accommodation by an employee for reasons of childcare and eldercare obligations does not necessarily attract your obligation to accommodate. Nor does the impact that work has on employees with childcare and eldercare obligations. A closer analysis must be done to determine whether or not there is evidence of a negative impact that results in a “real disadvantage” to the employee. Advice from an Employment Lawyer is critical with respect to whether the employee has a “real disadvantage” and how the Tribunal will further interpret this.
Minken Employment Lawyers is your source for expert advice and advocacy on today’s employment law issues. Whether you are an employer or an employee, we can help. Contact us to see how.
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