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Accommodation and when employees don’t engage in the process

accommodationThis fall, the Human Rights Tribunal of Ontario (HRTO) released a very important development on family status discrimination, in a case that intersects with disability accommodation law. In Misetich v Value Village Stores (2016 HRTO 1229, “Misetich”), the tribunal reviewed the caselaw, including the Federal Court of Appeal’s Johnstone case, and clarified its test for accommodating family status requests in the workplace.

Background to the Misetich case

In Misetich, the applicant was a part–time sales clerk working in the front of the Value Village Store, who then moved full–time to the more physically demanding production area in the back. In January 2013, the employee developed an arm and hand injury and, after providing medical documentation regarding the injury, was offered accommodation by moving back to the front of the store.

Moving back to the front of the store meant returning to irregular hours that were often on evenings and weekends. The back end production role had been Monday to Friday.

When presented with the option of disability accommodation by moving back to the front of the store, the employee requested specific shift times as accommodation on the basis of family status so that she could care for her 89 year old mother.

Accommodating family status

And so began the dispute between the employer and employee regarding the parameters of family status accommodation. Over the next number of months, the employer requested medical documentation to establish that the employee was the primary caregiver, the parent is unable to safely perform the duties the daughter is required to do, that no one other than the daughter can perform those duties, and that the daughter has taken all reasonable steps to self–accommodate.

The employee was offended by this request and refused to provide any detail other than a one-liner doctor’s note that said she had to “take care of her mother”. She instructed her doctor not to provide any confidential medical details regarding her mother to her employer. The employer remained in the dark regarding the extent of family status accommodation required.

The HRTO family status test

The information sought by the employer was essentially those requirements set out in the Johnstone test for accommodation. The adjudicator in the Misetich case rejected what she described as a higher standard of accommodation required by Johnstone and the subsequent line of cases. Rather, she held that the test for discrimination should be the same for all cases, including family status:

[43]      …the 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 for discrimination depending on the prohibited ground of discrimination alleged.

The adjudicator expressly parted ways with the previous line of cases for a number of reasons, including the inconsistency of outcomes, the higher standard required, the difficulty of applying the requirement for a legal responsibility to have been triggered by the obligation to cases involving elder care (i.e. there are legal obligations regarding children but not parents), and finally, the confusing conflation of the test for discrimination and accommodation.

In this case, the employer’s requirement that the employee “self-accommodate” raised concern. The tribunal held that mutually considering the supports available to the employee is fine, but the threshold becomes too high when the employer requires the employee to bear the onus of finding a solution to the family/work conflict before discrimination can be established (para 56).

The repeated request for proof that there was no other solution disproportionately shifted the onus to the employee. Rather, once the employee proves discrimination, the onus shifts to the employer to establish that the employee cannot be accommodated to the point of undue hardship (para 57).

While the HRTO clarified that the test for establishing family status should not require the employee to prove no solution is possible before establishing discrimination, in this case, the employer prevailed. Throughout 2013, the employee failed to provide any medical documentation or other proof that accommodation was required. As a result, the employee failed to establish discrimination. The HRTO held as follows:

[63]        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.

[64]        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.

[65]        For these reasons, the applicant has failed to make out her claim of discrimination.

Take aways for both sides

Personal preference and the failure to meaningfully cooperate in the accommodation process continues to prevent an employee from succeeding in a discrimination claim. The family status test may have shifted, but the employer’s right to basic information to engage in accommodation has not. In this case, the failure of the employee to cooperate meaningfully in the accommodation process lost her case before it even got to the stage of determining whether the employer accommodated her up to undue hardship.

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Lisa Stam

Founder of Spring Law, Employment and Labour Lawyer at Spring Law
Lisa Stam is founder of Spring Law, a virtual law firm advising exclusively on workplace legal issues for employers and executives. She practices all aspects of employment, labour, privacy, and human rights law, with a particular interest in legal issues arising from technologyinthe workplace. Lisa’s practice includes a wide range of entrepreneurs in the tech space, as well as global companies with smaller operations in Canada. In addition to the day to day workplace issues from hiring to firing, Lisa frequently blogs and speaks on both the impact, risks and opportunities of social media andtechnology issues in (and out of) the workplace, as well as the novel ways in which changing expectations of privacy continues to evolve employment law. Read more here.
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