A recent decision of the Ontario Human Rights Tribunal provides a timely reminder of two important points in the context of accommodation of employees:
- Family status does not just apply to child care, but also to elder care; and
- Employers should engage in a substantive discussion with an employee that requests accommodation (explicitly or implicitly) and undertake a thorough consideration of potential forms of accommodation.
In recent years, we have seen instances of employees seeking accommodation, usually relating to work scheduling, in order to allow them to care for their children. However, as people are living and working longer, it is likely that elder care will become a significant issue as well. A recent case involving Lyndon Devaney and Z.R.V. Holdings provides a good example. In that case, Mr. Devaney was the primary caregiver for his mother, who suffered from osteoarthritis and osteoporosis. The employer was an architectural firm and Devaney was successful in bringing in a large account relating to work on the Trump International Hotel and Tower.
Although Devaney’s mother was eventually accepted into a long-term care facility, there was a two-year period when she was at home, living with Devaney. She was wheelchair-bound and suffered many fractures, undergoing several surgeries. In order to provide the necessary care, Devaney was frequently late or absent from the office. However, there was relatively little question that he worked hard, primarily from home using a notebook computer and remote access to the firm network. According to his evidence, over a two-year period, he worked over 1,500 hours of overtime.
Leadership within the firm became unhappy with Devaney’s absences from the office. In July 2007, the senior partner sent an email to Devaney in which he advised that although the firm had “tolerated” his absences for a long time in recognition of his personal and family problems, they were not prepared to do so any further. The email went on to state that “as far as I am concerned, the only time that counts is the time that is spent in the office working with your team.” Unfortunately, matters did not improve and Devaney was dismissed in January 2009, with 34 weeks of pay in lieu of notice. Although he was subsequently offered contractual work on a per diem basis, without the title of “Principal” that he previously enjoyed, he rejected this offer and pursued litigation, alleging discrimination on the basis of family status.
In response to the allegations, the firm took the position that it had just cause to dismiss Devaney as a result of his ongoing absences from the office. Furthermore, the firm stated that Devaney had never sought “formal accommodation,” and therefore it had not failed to accommodate him as required by law. Since Devaney obtained new employment almost immediately after he was dismissed, his claim for lost wages and benefits was denied. However, the Ontario Human Rights Tribunal found that he had been discriminated on the basis of family status. In its analysis, the tribunal acknowledged that Devaney never asked for special accommodation, but also found that the firm was very much aware of the reason for his absences. Ultimately, Devaney was awarded $15,000 for “loss of self-respect, dignity and confidence” due to the breach of the Human Rights Code.
The decision should send a message to employers that they should not hastily dismiss a request to accommodate elder care obligations, as this does relate to family status and is therefore a protected ground pursuant to human rights legislation. Like other forms of accommodation, an employer faced with such a request must undertake a good faith analysis in order to determine whether accommodation is possible. Their obligation is to accommodate to the point of undue hardship.
Furthermore, with respect to any form of accommodation, this case is also a reminder that an employer cannot rely on the defence that “the employee never explicitly requested accommodation.” While Devaney never did so, it was obvious to the employer that the reason for his absences was his obligation to care for his elderly and sick mother. As a result, dismissing him because of these absences was discriminatory.
Where an employer knows, or suspects, that there is a potential human rights issue, they should not pursue a tactic of being “wilfully blind” in order to avoid their legal obligations. Accommodation is a two-way street, as our courts and tribunals have repeatedly stated. While employees seeking accommodation have a duty to engage the employer and provide the necessary information, an employer cannot simply bury its head in the sand and hope to avoid liability.
Miller Thomson LLP