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Family status: Recent interpretation under the Human Rights Code

Requests for accommodation due to family status are becoming more common as societal norms continue to change. The leading case in Ontario that addresses the worker’s rights and the employer’s obligations on the ground of family status is arguably Devaney v. ZRV Holdings Limited, 2012 HRTO 1590. The case confirms that an employer’s failure to reasonably accommodate an employee’s family caregiving responsibilities may result in a breach of the Human Rights Code (“Code”), and that family status has now been interpreted to include elder care.

Termination

The applicant, Fancis Lyndon Devaney, worked as an architect with the respondent, ZRV Holding Limited (ZRV) from 1982 until his employment was terminated in 2009. Mr. Devaney alleged that his employment with ZRV was terminated as a result of the respondents unilaterally changing the terms of his contract and not allowing him to maintain a flexible work schedule in order to care for his ailing mother. [1] Shortly following his termination, the applicant filed an Application with the Human Rights Tribunal alleging discrimination on the basis of family status.

The respondents submitted that the applicant’s employment was terminated for just cause, due to his persistent failure to regularly attend the office in spite of many warnings. The respondents stated that though the applicant referred to his caregiving responsibilities to his parent, he never sought formal accommodation of his workday, or adjustments of the requirement to accurately account for his attendance or any absences. The respondents denied that the applicant was subjected to discrimination.[2]

Work history

The applicant, Mr. Devaney, had worked for an architectural firm for approximately 27 years and testified to being the Prinicipal-In-Charge on work dealing with the Trump International Hotel and Tower. Mr. Devaney was also the primary caregiver of his mother whose health had declined in recent years.

Mr. Devaney explained that his work hours were long and often called for him to work unconventional hours including some evenings and weekends. The majority of his work was performed at home but he was always available for clients and management through email, telephone, etc. When Mr. Devaney first began to work from home, management did not take issue with it. Further, there was no evidence to suggest that Mr. Devaney’s working at home adversely affected the quality of his work. Mr. Devaney needed to work from home in order to tend to his mother. The applicant described his mother’s condition as tremendously disabled. [3]

Beginning in 2007 his employer insisted that Mr. Devaney be at the office from 8:30 to 5:00 pm. Mr. Devaney’s submitted that he had previously been allowed to work from home without objection from management, and further, as his mother’s primary caregiver, his family responsibilities required it of him. As his mother’s health deteriorated, Mr. Devaney was often required to assist her, but kept in close communication with his office. Over time an obvious conflict developed. For example, in an email dated October 9, 2008, Mr. Devaney wrote: ”Sadly, my mother is declining and as such I had to work at home Tuesday.” Management at the company responded, “I am sorry to hear about your Mother. However, as I said before, work at home does not count – only work in the office.” [4]

On January 9, 2009, Mr. Devaney was given a letter terminating his employment. The letter stated that, despite a previous letter to the applicant, and the many warnings the applicant had been given, his attendance record continued to be “abysmal”.[5]

The Code

Under Section 5(1) of the Ontario Human Rights Code, the duty to accommodate in the workplace has a two-part obligation, procedural and substantive.

Under the procedural obligation, the employer must take adequate steps to explore and assess accommodation options with the employee. Under the substantive obligation, having interviewed the employee, accommodation should be granted where it does not pose an undue hardship to the employer. (See: Workplace religious accommodation: A two-part obligation under human rights)

In other words, once accommodation is requested by the employee, not only is the employer responsible for investigating the accommodation, the burden then shifts to the employer to demonstrate why the employee’s needs cannot be accommodated.

HRTO Decision

In this particular instance, the employer was unable to prove why Mr. Devaney’s presence in the office was needed if he continued to be accessible through a plethora of technologies, and if his work remained satisfactory. The tribunal in their decision stated:

Each case must be determined based on its own facts and circumstances. Applying the above principles to the facts of the case at hand, I find that, in order to make out a prima facie case of discrimination on the basis of family status, the applicant must establish that the respondents’ attendance requirements had an adverse impact on the applicant because of absences that were required as a result of the applicant’s responsibilities as his mother’s primary caregiver. I say “required” because I agree with the respondents that if it is the caregiver’s choice, rather than family responsibilities, that preclude the caregiver from meeting his or her employer’s attendance requirements, a prima facie case of discrimination on the basis of family status is not established: see Wight v. Ontario (Office of the Legislative Assembly), [1998] O.H.R.B.I.D.. This approach is also consistent with the well-established principle that the Code requires the accommodation of Code-related needs, not preferences.[6]

The Tribunal found that the respondent discriminated against Mr. Devaney on the basis of family status when they failed in both the procedural and substantive aspects of their duty to accommodate the applicant short of undue hardship, and terminated his employment. [7]

The respondent was ordered to pay Mr. Devaney $15,000 for injury to dignity, feelings and self-respect, to develop and implement a human rights policy and to, amongst other things, provide mandatory human rights training for all partners and staff who perform supervisory and/or human resources functions.[8]

Conclusion

Whereas traditionally family status claims were based on women returning from maternity leave, as our society continues to age, employers would do well to prepare for more frequent accommodations dealing with the care giving for elderly parents.

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Kevin Sambrano

Kevin Sambrano, B.A.A. is a paralegal who is passionate about human rights. Kevin worked for a number of years as a tenant advocate organizing over 100 tenant associations and taking part in over 80 positive outcome negotiations. He completed his internship at a law firm, focusing in human rights and employment law. Recently, Kevin opened the doors of Sambrano Legal Services offering representation in human rights and employment law in Toronto and the GTA.Read more
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