At the June 2, 2016, Ontario Employment Law Conference, during the Q&A sessions, we received numerous questions on topics covered at the conference but could not address them all. Therefore, from time to time, till the next conference, we will be posting and answering some of these questions on the blog.
Question: An employee wants to work straight days related to child care, indicating that they cannot afford day care. Would this be considered a valid reason?
The Ontario Human Rights Code tells us:
Every person has a right to equal treatment with respect to employment without discrimination because of […] family status […].”
The Code defines “family status” as the status of being in a parent and child relationship.
This means that persons in a parent-child relationship have a right to equal treatment in the workplace. Employers, therefore, cannot discriminate in hiring, promotion, training, benefits, workplace conditions, or termination of employment because a person is a family caregiver.
As affirmed by the Ontario Human Rights Commission (“OHRC”), a parent and child relationship can also mean a parent and child “type” of relationship which may not be based on blood or adoption ties, but based on care, responsibility and commitment. The OHRC provides the following examples: parents caring for children (also by adoption, fostering and step parenting), people caring for aging parents or relatives with disabilities, as well as families headed by lesbian, gay, bisexual or transgendered persons.
As was learned at the Conference, family status accommodation usually arises in context of child care obligations and often arises in connection with other prohibited Code grounds as well. Accommodation for family status may also arise in relation to obligation to care for any family member.
As with other Code grounds, employers have a legal duty to accommodate based on a person’s family status. The goal is to allow employees equal benefit from and participation in the workplace, up to the point of undue hardship. Employers have a duty to think about whether workplace culture, structures, policies and procedures can be adjusted to accommodate the needs of family caregivers. This may include flexible scheduling or alternative work arrangements (e.g., remote access or work-from-home arrangements). It is also important to note that although the “best” solution may result in undue hardship, it does not preclude an employer from taking the next best steps, until more ideal solutions can be put into place.
That said, it is important to inquire whether the organization has an accommodation policy in place. If so, the process you will need to take with respect to accommodation will be stipulated there. According to the OHRC,
“[w]orkplaces are expected to have accommodation policies and procedures in place.”
Employees and employers have duties and responsibilities when it comes to workplace accommodation.
Some employee duties and responsibilities include, among others:
- Request the accommodation and provide an explanation of why it is required, so that needs are known.
- Take part in discussions on possible accommodation solutions.
- Meet agreed-upon work performance and job standards, once accommodation is provided.
- Work with the employer, on a continuing basis, in order to manage the accommodation process.
Some employer duties and responsibilities include, among others:
- As part of the duty to accommodate, take an active role in ensuring that alternative approaches and possible accommodation solutions are investigated, and canvass various forms of possible accommodation and alternative solutions.
- Permit accommodation requests in a timely manner (to the point of undue hardship).
- Document the accommodation request and action taken.
- Uphold confidentiality.
So yes, childcare would be considered a valid reason. Elements to consider are discussed below.
At the Conference, the matter of Johnstone v Canada (Border Services) was discussed. This matter created a test for family status discrimination in the context of childcare (the “Johnstone test”). The court held that in order for a claimant to demonstrate a prima facie case of discrimination in a situation involving childcare obligations, they must show the existence of the following factors.
The Johnstone test
- child is under the claimant’s care and supervision;
- childcare obligation at issue engages the claimant’s legal responsibility for that child vs. personal choice;
- claimant has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions; and
- a workplace condition or rule interferes with the childcare obligation in a non-trivial way.
If the employee is able to demonstrate a prima facie case of discrimination (i.e., employer discriminated against them because of family status), the onus is then on the employer to demonstrate that the policy or practice is a bona fide occupational requirement and that the accommodation would amount to undue hardship.
It is important that employers do not outright reject a request for accommodation, even when the request may seem to be unreasonable. Rather, the accommodation request and action taken should be well documented. This will assist an employer demonstrate to the court (if need be) that they made every effort possible to accept the employee’s request, they investigated as to whether they could accommodate the employee up to the point of undue hardship, and whether or not the employee actively participated and facilitated the process, etc.
Human rights matters, including those that involve employment, involve sensitive and complex issues and therefore should not be taken lightly by an employer. That being said, if at any point you are having second thoughts on what should be done in your particular situation or are still unclear on how to best approach your situation, it is advisable that you seek the advice of a lawyer.
The Human Resources Advisor has comprehensive commentaries on the topic of accommodation based on family status, as well as tips to understand an employer’s and employee’s duties under the human rights duty to accommodate to the point of undue hardship.