In Ontario, subsection 5(1) of the Human Rights Code explicitly protects employees from discrimination on the basis of family status.
In the employment context, family status discrimination cases often arise when an employee requests a change in their schedule or their regular working hours in order to permit them the opportunity to care for a child or a parent.
In the evolving COVID-19 world; I expect employees will ask to continue working at home for child care and elder care reasons when they are directed to return to work after the current state of emergency is lifted.
Employers are required to accommodate an employee’s family status needs to the point of undue hardship. The Supreme Court of Canada has confirmed that the duty to accommodate includes procedural and substantive components. The procedural duty involves a consideration of the procedures and steps taken to respond to a request for accommodation. Where an accommodation is warranted, the substantive duty requires employers to make necessary modifications, up to the point of undue hardship.
Proving family status discrimination
An employee must prove a prima facie discrimination and then generally an employer has a duty to accommodate to the point of undue hardship.
Tests for proving family status discrimination
The Ontario Courts and the Ontario Human Rights Tribunal are currently considering two tests.
The Johnstone test (from a case decided by the Federal Court of Appeal)
In order to make out a prima facie case of family status discrimination resulting from childcare obligations , the individual advancing the claim must show
(i) that a child is under his or her care and supervision;
(ii) that the childcare obligation at issue engages the individual’s legal responsibility for that child, as opposed to a personal choice;
(iii) that he or she has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible, and
(iv) that the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation.
The Misetich case (from a case decided by the Ontario Human Rights Tribunal)
In order to prove family status discrimination in the context of employment, the employee will have to do more than simply establish a negative impact on a family need. The negative impact must result in real disadvantage to the parent/child relationship and the responsibilities that flow from that relationship, and/or to the employee’s work.
Differences between the Johnstone test and the Misetich test
Under the Misetich test, it is improper to limit human rights protections to legal responsibilities. In this regard, the second requirement of the Johnston test was rejected.
Under the Misetich test it is improper to consider accommodation issues. “Requiring an (employee) 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.” In this regard, the Misitech test the third requirement of the Johnstone test was rejected.
Current state of the law
Despite the fact that the Misetich standard has been generally consistently applied in Ontario human rights decisions, the HRTO in a 2019 decision considered both the Misetich and Johnstone approaches in its analysis. In doing so, it noted that on the facts of that particular case, the same result would be reached regardless of which test was applied. It did not, however, clarify why it was considering the Johnstone analysis and whether that was an analysis that could or should be used by the HRTO in future cases. The same scenario arose in the Ontario Divisional Court in a 2019 decision, where this court also discussed both the Misetich and Johnstone tests.
The battleground – can an employee prove a legal obligation to a child or parent?
I suspect some employees with ongoing child care and/or elder care responsibilities will resist returning to work when directed to return to the workplace and instead will ask to continue working remotely. It could be because schools are still closed. It could be because they don’t want to expose elderly parents to a higher risk of catching COVID-19.
If so, under the Johnstone test an employee must show a legal responsibility to the child or parent, however, no such legal obligation must be proven under the Misetich test; rather the employee must prove a real disadvantage to the parent/child relationship which is easier to prove especially relating to elder care. In addition, the employee must also generally prove he or she can perform their essential job duties from home.
Please keep in mind, if a child or parent is sick, then an employee can take a number of unpaid leaves under the Employment Standards Act, and there is a new COVID leave that allows a parent to take an unpaid leave to care for a child because of COVID because of school or child care closures. These unpaid leaves are also something to keep in mind when considering possible accommodation options.