It's not child's play

The duty to accommodate childcare obligations has never been as relevant as it is now, as many workers struggle to balance work and parenting obligations while living through a pandemic.

So, if your employee asks to change their shift schedule so that they can look after their kids, do you have to agree? The answer to such questions is rarely simple, but a failure to take requests like this seriously will lead to liability.

The most recent decision relating to the duty to accommodate childcare is Kovintharajah v. Paragon Linen & Laundry. This decision of the Human Rights Tribunal of Ontario confirms that:

• childcare is covered by “family status” under human rights legislation
• there is a duty to accommodate childcare obligations to the point of undue hardship
• a failure to accommodate childcare obligations constitutes discrimination
• the duty to accommodate is comprised of both procedural and a substantive element
• tThe test for family status discrimination is the same as all other grounds
• damages awards for failure to accommodate are getting bigger.

The facts of the case were fairly straightforward and not particularly unusual. Paragon Linen and Laundry Services operated a commercial laundry facility. Sathiyamoorthy Kovintharajah and his spouse had three young children and were also the caregivers for his spouse’s parents. Notably, his in-laws had significant health issues and were not able to care for young children to any substantial degree.

The evidence was that Kovintharajah and his wife had to arrange their schedules so that one was home at all times in order to look after their kids and be available for her parents.

During the course of his employment, Kovintharajah had requested a modified schedule; specifically, he asked to be allowed to end his shift early every day so that his wife could work in the evening. He was allowed to do so for over a year. However, as is often the case, things changed when a new manager entered the picture.

The new manager promptly decreed that employees would not be allowed to leave work early unless they gave 48 hours’ notice, and they could do so no more than twice a month. Needless to say, this was impossible for Kovintharajah. When he continued to leave early, he was subjected to progressive discipline, culminating in dismissal for cause within a matter of weeks of the change in policy.

The tribunal held that the employer had failed in its duty to accommodate, both procedurally and substantively. There was no evidence that it had properly assessed its ability to accommodate Kovintharajah’s childcare obligations, as the procedural duty requires. Simply put, employers cannot reject a legitimate request for accommodation without demonstrating that it would cause undue hardship. In this case, the employer made no effort to do so.

The tribunal accepted that there was a legitimate need for accommodation and, in light of its finding that Paragon failed to meet the duties that arose as a result of the request for accommodation, the tribunal found that the employer had breached the Human Rights Code. As a result, Kovintharajah was awarded nearly $50,000, including $20,000 in general damages and $29,724 in lost wages.

Takeaways

It is always a mistake for an employer to reject a request for accommodation out of hand. Employers must assess all requests for accommodation properly and be prepared to justify their decision.

At the same time, employees must participate in the accommodation process by providing reasonable evidence of the need for accommodation. If they do, and if employers fail to meet their procedural or statutory duties, then the employer will be liable for damages.

As time moves on, the damages are becoming more substantial.