Ontario tribunal diverges on family status

Says test for discrimination should be same in all cases
By Sarah Dobson
|Canadian HR Reporter|Last Updated: 01/23/2017

A recent human rights case in Ontario has diverged from recent case law when it comes to family status accommodation, suggesting there should not be a different test for family status discrimination than for other forms of discrimination, and limiting human rights protection to legal responsibilities — as opposed to personal choices — imposes an “unduly onerous burden” on applicants.

The tribunal also disagreed on the role self-accommodation plays when determining discrimination.

The case concerned Tonka Misetich, an employee at Value Village Stores hired in 2006 who developed repetitive strain injury in her left hand and arm, and so was offered a new position in 2013.

But Misetich said the change in hours would be a hardship because she prepared evening meals for her mother, and she was not available to work evenings, weekends or on-call shifts: “(It) would completely change the terms of my employment. I care for an elderly (86-year-old) parent and my ‘family status’ is such that I can only work the above-mentioned shifts.”

The store manager requested medical evidence to support Misetich’s ongoing absence from work and that she had “taken all reasonable steps to self-accommodate and/or resolve the conflict created by the parent.” But Misetich said the request was insulting and offensive, and she would not share her parent’s confidential medical information.

Eventually, Misetich was advised her failure to co-operate may be viewed as insubordination and put her employment in jeopardy. Finally, when Misetich failed to show up for scheduled shifts or provide further medical documentation, her employment was terminated for job abandonment — so she claimed discrimination with respect to employment because of family status.

In the end, Misetich’s ability to provide evening meals for her mother was not adversely affected by the requirement to work days, evenings and weekends, found Jennifer Scott, vice-chair of the Human Rights Tribunal of Ontario. As a result, the employee failed to establish discrimination, so it was not necessary to consider the issue of accommodation.

Previous case law

But in looking at the case, Scott cited the well-known 2014 Federal Court of Appeal case in Canada (Attorney General) v. Johnstone, which held that the ground of family status in the Canadian Human Rights Act includes the status of being in a parent-child relationship, as well as the obligations that flow from that relationship.

“Different courts and administrative decision-makers have applied different tests for family status discrimination and within that ground, different tests for childcare and eldercare,” she said.

“This was done because of the real concern that not every negative impact on a family obligation, or conflict between a family and work obligation, is discriminatory. I agree with that concern. Where I part ways with these decisions is the notion that there is a different test for family status discrimination than for other forms of discrimination.”

The test for discrimination should be the same in all cases, said Scott: “An applicant must establish that he or she is a member of a protected group, has experienced adverse treatment, and the ground of discrimination was a factor in the adverse treatment. There is no principled basis for developing a different test.”

The test for family status discrimination has become, perhaps inadvertently, higher than for other kinds of discrimination, she said.

“For example, in Johnstone, the Court of Appeal held the childcare obligation at issue must engage the individual’s legal responsibility for the child, as opposed to a personal choice. The Court of Appeal stated the obligations that are covered are those that a parent cannot neglect without engaging his or her liability. In other words, to neglect those obligations would result in legal sanctions.”

But caregivers may have obligations that may not emanate from their legal responsibilities, and are still essential to the parent-child relationship, she said, so “to limit human rights protection to legal responsibilities imposes an unduly onerous burden on applicants.”

Some cases have “conflated the test for discrimination and accommodation,” said Scott. “I do not agree that in order to prove discrimination, an applicant must establish that he or she could not self-accommodate the adverse impact caused by a workplace rule.”

Assessing the impact of the impugned rule is done contextually and may include consideration of the other supports available, said Scott. And while this may appear to be akin to considering whether an applicant can self-accommodate, it is different in a fundamental way, she said.

“Requiring an applicant to self-accommodate as part of the discrimination test means the applicant bears the onus of finding a solution to the family-work conflict; it is only when he/she cannot that discrimination is established. This is different than considering the extent to which other supports for family-related needs are available in the overall assessment of whether an applicant has met his/her burden of proving discrimination.”

Legal analysis

The tribunal seemed to indicate the bar was set too high in Johnstone, said Andrew Cogswell, associate at CCPartners in Brampton, Ont.

“They seemed to take the stance that self-accommodation shouldn’t be a stand-alone step or stand-alone requirement as to whether or not discrimination exists, but that it should be part of overall contextual analysis of what type of impact the employment rule has on the individual. So, for example, if an employee has very little self-accommodation options available, then of course the rule will have a greater impact on them.”

Someone who is seeking family status accommodation related to eldercare may have to reach a higher standard than someone for childcare, said Cogswell, “and that doesn’t make sense in the spirit of human rights legislation.”

The tribunal’s view was that the Johnstone decision created a separate test or process for family status accommodation and discrimination versus other types of discrimination, said Heather Cameron, an associate at Norton Rose Fulbright in Ottawa.

“The tribunal is saying, on an almost literal reading of the Johnstone decision, the obligation to self-accommodate happens at the beginning, and the obligation to participate in the accommodation process and that onus on the employee is at the beginning and is part of the assessment of whether or not discrimination even occurs. But it should be treated more like other types of discrimination where it’s an assessment of whether or not the person’s membership in that group and that their individual need is impacted — participation, for example, in the workplace is being impacted, that there’s that kind of conflict.”

The tribunal really disagreed on the role self-accommodation plays when it is determining whether there is prima facie case of discrimination, said Giovanna Di Sauro, an associate at Filion Wakely Thorup Angeletti in Toronto.

“(It) said employees are not required to self-accommodate and… suggested that the Johnstone test may be conflating accommodation with the test for discrimination.”

At the same time, the tribunal said it will consider the extent to which other supports may be available to the applicant, she said.

“The problem is that we don’t really know what that means in practice right now.”

The human rights tribunal also said it will assess the impact of the rule contextually, said Di Sauro, “so that’s where the tribunal starts departing from recent case law because the tribunal said it will not require employees to establish that they cannot ‘self-accommodate.’ And the tribunal will also look at these responsibilities in a broad way, so it will not simply focus only on legally mandated care obligations, which is what was seen in the Johnstone test.”

What makes this case different from a lot of the case law on this issue is it deals with eldercare accommodation and that is sometimes harder to pinpoint than childcare accommodation, said Cameron.

“What the human rights tribunal was saying, in part, was that the idea that it engages a legal responsibility more than a personal choice is harder to define when you’re looking at eldercare responsibility versus childcare responsibility.”

There’s still the matter of personal choice, said Cameron.

“It can’t be that every obligation someone has in a parent-child or familial relationship could ground a claim for discrimination or accommodation on the basis of family status… there has to be some sort of need or responsibility or something that’s more than just a personal choice that’s being affected. It just doesn’t necessarily have to go as high as the legal obligations with respect to that caregiver relationship.”

The ruling suggests workers may be able to more easily establish family status discrimination, said Cogswell. Rather than the issue flowing from a legal responsibility, it can flow from the nature of the relationship.

“The decision-maker there is really trying to draw the distinction between what might be an extremely vital family obligation but might not rise to the level of a legal obligation, which explains the issue she took with the Johnstone test of the accommodation only being required if the applicant had a legal obligation, which is much easier to attach to a child than a parent. And most parties agree, whether it’s the employee side or employer side, it makes sense we don’t have a whole slew of different tests, but ultimately both sides are looking for a bit more certainty of what tests we’re going to stick with.”

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