Family Status Discrimination - A Legal Analysis
Topics Will be Covered in This Post:
1. Human Rights Code Protections in Related to Martial Status and Family Status
The Human Rights Code (the Code) includes two grounds that provide protections for persons in relationships: marital status and family status. “Marital status” is defined in section 10 (1) of the Human Rights Code as “the status of being married, single, widowed, divorced or separated and includes the status of living with a person in a conjugal relationship outside marriage”, including both same-sex and opposite sex relationships.
Family status is defined in section 10 (1) of the Human Rights Code as “the status of being in a parent and child relationship.” It applies not only to the fact of being a parent or a child, but also to the caregiving role between parents and children, and between adult children and their aging or ailing parents.
This can also mean a parent and child “type” of relationship, embracing a range of circumstances without blood or adoptive ties but with similar relationships of care, responsibility and commitment.
Where an employee requests workplace accommodation on a Code ground, a two-step analysis applies.
First, the employee must show that there is prima facie discrimination, i.e. that the workplace requirement in question causes a disadvantage or exclusion of the sort that is prohibited by the ground of family status. If this step is not proved, the employer does not have to even consider accommodation.
Second, if the first step is proved by the employee, the onus shifts to the employer to show that the workplace requirement is a Bona Fide Occupational Requirement (BFOR) and is necessary, such that any change of the requirement, to accommodate the employee, would cause the employer undue hardship.
Click here for further reading regarding BFOR.
Click here for further reading regarding undue hardship.
This duty to accommodate has both a substantive component (it must respond to the worker's needs) and a procedural component (the employer must demonstrate an active involvement in the search for accommodation). The person requiring accommodation must also cooperate in the attempt to find suitable accommodation.
In the process, details about the employees' own as well as their family’s health and personal circumstances may need to be disclosed, if relevant in determining what's the suitable accommodation.
According to Espinoza v. The Napanee Beaver Limited, 2021 HRTO 68, an employee requesting family status accommodation is “not permitted to insist on a particular accommodation and resign when that accommodation is denied”. (Espinoza, at para. 99)
2. The Misetich Approach
In Misetich v. Value Village Stores Inc., 2016 HRTO 1229, the “Johnstone test” was rejected by the Human Rights Tribunal of Ontario (HRTO). The decision in Espinoza v. The Napanee Beaver Limited, 2021 HRTO 68, confirmed that the Misetich Approach is the go-to test for family status cases at HRTO.
It is unclear whether Ontario Courts will follow suits, considering the Johnstone test was adopted by the Ontario Court of Appeal in Partridge v. Botony Dental Corporation, 2015 ONCA 836. To be on the safe side, it is advised that legal practitioners should incorporate both the Johnstone test and the Misetich Approach into their legal analysis, when circumstances permit.
A. Misetich v. Value Village Stores Inc., 2016 HRTO 1229
The HRTO agreed with the submissions of Ontario Human Rights Commission (OHRC) that the Federal Court of Appeal's formulation of the Johnstone test, which requires applicants to demonstrate that their caregiving obligations engage a "legal responsibility" imposes an unduly onerous burden on applicants and is especially unworkable in the context of eldercare.
The HRTO also accepted the OHRC’s argument that an assessment of whether a claimant had made reasonable efforts to meet family status obligations (i.e. self-accommodate) does not belong at the prima facie discrimination stage.
HRTO reiterate that the test for discrimination with respect to family status remains the same as the test for discrimination with respect to every ground:
The Applicant must establish they have a characteristic protected from discrimination under the Code;
The Applicant must establish an adverse impact; and
The Applicant must establish the protected characteristic was a factor in the adverse impact.
(Misetich, at para. 43)
Once these factors are established, prima facie discrimination exists and the evidentiary burden shifts to the respondent employer to demonstrate that the employee cannot be accommodated to the point of undue hardship. The accommodation process is a multi-party inquiry and the employee is obligated to cooperate in this process, providing sufficient information with respect to the family-related needs and then working with the employer to identify possible solutions to resolve the conflict between work duties and family responsibilities.
The approach to family status discrimination however involves a contextual analysis to determine whether the work requirement at issue would result in a real disadvantage to the familial relationship. An employee need not self-accommodate as a pre-condition, but other supports that may be available to that employee can be considered in the contextual analysis.
B. Espinoza v. The Napanee Beaver Limited, 2021 HRTO 68
In Espinoza v. Napanee Beaver Limited., the HRTO continued to apply Masetich (Espinoza, para. 89, 90). The Applicant became pregnant, experienced complications and went on a medical leave followed by a maternity/parental leave. The Applicant requested fewer modified hours upon her return to work, which was denied by the Employer.
The employer continued to deny the request, even after accommodation was requested on the basis of the Code. The Applicant did not return and stated she had to “unwillingly resign” as she was unable to secure appropriate childcare.
HRTO accepted that family status was engaged for the employee as a parent of twins. HRTO found that the Applicant had not demonstrated prima facie discrimination when the request for modified hours was denied on August 11, 2017 because the Applicant had not identified that her work scheduled created a barrier to return to work because of her childcare obligations. In the absence of a clear request for accommodation, there is no duty to accommodate on the employer. On August 17, 2017 however the Applicant did request accommodation as a result of childcare obligations.
The employer in this case argued that the Applicant “must establish that she made reasonable efforts to meet her childcare obligations through reasonable alternative solutions, and no such alternative solution was reasonably accessible” (Espinoza, at para. 95). The Tribunal rejected this principle, finding that would essentially require the Applicant to “self-accommodate” and relying upon the previous position advanced by the Tribunal in Misetich (Espinoza, at para. 96).
The Tribunal found that the employer failed to accommodate the Applicant as required by the Code and ordered $12,485.23 in wage loss and $10,000 in damages for injury to dignity, feelings and self-respect.
3. The Johnstone Test
“The Johnstone test” is the current test being used in the federal courts when considering family status cases under the Canadian Human Rights Act. Even if a particular Ontario Court or HRTO Tribunal decides to use Misetich approach instead of the Johnstone test, the considerations are likely to be incorporated into the Misetich contextual analysis.
Under “the Johnstone test” as established in Canada (Attorney General) v. Johnstone, 2014 FCA 110, in order to make out a prima facie case of family status discrimination resulting from childcare obligations, the individual advancing the claim must show:
that a child is under his or her care and supervision;
that the childcare obligation at issue engages the individual’s legal responsibility for that child, rather than just a personal choice;
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 (not required under the Misetich approach to establish a prima facie case); and
that the impugned workplace rule interferes, in a manner that is more than trivial or insubstantial, with the fulfillment of the childcare obligation.
The court held that a “serious interference” with caregiving is not required, and that even ordinary caregiving circumstances can be prima facie discriminatory, as long as a “legal responsibility” exists.
The court’s analysis focused on part two of the Johnstone test – whether the childcare obligation at issue engages the individual’s legal responsibility for that child, as opposed to a personal choice.
Although it’s not required under the Misetich Approach to establish the existence of a child care or elder care legal obligation as opposed to a personal choice to establish a prima facie discrimination, recent legal jurisprudence suggests that such considerations are evaluated at the contextual analysis stage as to whether accommodation should be required and to what extent.
What Is a Legal Obligation Versus Personal Choice?
Duty to Care for Your Child
Under Section 31, every parent has an obligation to provide support, to the extent that the parent is capable of doing so, for his or her unmarried child who (a) is a minor; (b) is enrolled in a full-time program of education; or (c) is unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents.
The obligation under Section 31 does not extend to a child who is sixteen years of age or older and has withdrawn from parental control.
Legal obligations is to be distinguished from “personal choices”:
... the childcare obligations at issue are those which a parent cannot neglect without engaging his or her legal liability. Thus a parent cannot leave a young child without supervision at home in order to pursue his or her work, since this would constitute a form of neglect …. (Johnstone, at para. 70- 71)
Voluntary family activities, such as family trips, participation in extracurricular sports events, etc. do not have this immutable characteristic since they result from parental choices rather than parental obligations. These activities would not normally trigger a claim to discrimination resulting in some obligation to accommodate by an employer. (Johnstone, at para. 72)
Duty to Care for Elderly
In Ontario, there’s a legal obligation to care for aging parents if certain conditions are met.
In Ontario, under section 32 of the Family Law Act, children who are over the age of majority (and who have withdrawn from parental care and control) have an obligation to support their parents where necessary. Section 32 requires that in order to be eligible for parental support, a parent must demonstrate need.
To claim parental support under Section 32, two conditions must be satisfied: 1) the parent must have ‘cared or provided support’ to the child, and 2) the parental support is limited to the extent to which the child has the means to provide.
4. Cases Involving Family Status Discrimination in Related to Child Care
A. Canada (Attorney General) v. Johnstone, 2014 FCA 110
“The Johnstone Test” decision. The tribunal and court found in favour of Ms. Johnstone, who worked for the Canadian Border Service Agency. Following a maternity leave, she was unable to find child care arrangements suitable for the employer's required rotating schedule. She requested a fixed schedule, three days per week, because she only had access to childcare arrangements with family members on those days. Ms. Johnstone had investigated numerous regulated childcare providers, both near her home and near her work, but none of them provided services outside standard work hours. The court referred to the evidence before the Tribunal from an expert on childcare policy who testified that it is “almost impossible” to find childcare (regulated or unregulated) outside of standard work hours (Johnstone at paras. 104-107).
B. Partridge v. Botony Dental Corporation, 2015 ONCA 836
Partridge v. Botany Dental Corporation is the first Ontario court decision to apply the Johnstone test for discrimination on the basis of family status. The trial judge’s decision – affirmed by the Ontario Court of Appeal – stated that Johnstone is the "leading case" on family status discrimination. The decision therefore confirms that Johnstone is binding on Ontario courts when claims of discrimination on the basis of family status are made.
When Ms. Partridge returned from maternity leave, the employer unilaterally demoted her from her former position of office manager, to her original position of dental hygienist, with reduced hours and pay. When Ms. Partridge objected, her hours were deliberately changed by the employer, who knew that the change to working evenings would interfere Ms. Partridge's childcare arrangements. The employer terminated Ms. Partridge's employment, citing cause when she refused to accept the new working arrangements.
The court rejected all of the alleged elements of just cause, and awarded Ms. Partridge reasonable notice for the wrongful dismissal, as well as general damages for family status discrimination, in violation of the Code. Following the Johnstone test, the court held that a prima facie case of discrimination on the basis of family status was made out, and that the new schedule was not a bona fide occupational requirement (Partridge, at paras. 91, 92).
The employer attempted to argue that Ms. Partridge had not met the requirement to show that alternate childcare arrangements were not available (the third part of the Johnstone test). The Court of Appeal disagreed, stating that Ms. Partridge "testified to a very complex arrangement of relatives and others whom she had asked to pick up her children from daycare.” The court accepted that “this arrangement was not sustainable." (Partridge, at paras. 22)
The trial judge (affirmed on appeal) awarded Ms. Partridge a general damage of $20,000 for injury to dignity, feelings and self-respect pursuant to the Code (exercising the Court’s authority under section 46.1(1) of the Code, which expressly provides that a court can grant remedies for violations of the Code), and twelve months’ reasonable notice for the wrongful dismissal. The court also found that the employer breached the reinstatement provisions under section 53 of the Employment Standards Act by refusing her the position she held prior to her parental leave. (Partridge, at paras. 96-98)
Henderson v. Marquest Asset Management Inc., 2010 CanLII 34120 (ON LRB)
In Henderson v. Marquest Asset Management Inc., the Ontario Labour Relations Board (OLRB) found that the employer breached section 53 of the Employment Standards Act when it terminated the employment of a woman who took a maternity leave, and retained the person hired to replace her while she was on leave (Henderson, at para. 13 -14).
The OLRB confirmed that a woman should not be disadvantaged by taking a maternity or parental leave, even if the leave results in the company finding an employee they prefer. The OLRB ordered the employer to reinstate the applicant forthwith into her position she held prior to the maternity leave.
5. Cases Involving Family Status Discrimination in Related to Elder Care
Devaney v. ZRV Holdings Limited, 2012 HRTO 1590
In Devaney v. ZRV Holdings Limited, the HRTO held that the applicant’s employment was terminated based on absences, a significant portion of which were due to his obligation to care for his elderly mother. His mother was in a wheelchair, and had significant physical impairments. Mr. Devaney was an architect with the employer firm from 1982 until the termination of his employment in 2009. He had been promoted more than once over the period of this long-term career, and at the time of his termination he was the principal in charge of the Trump Tower project.
The Tribunal held that Mr. Devaney established a prima facie discrimination case:
… given the applicant’s care responsibilities to his mother, the respondents’ requirement that the applicant be in strict attendance at the office each day had an adverse impact on the applicant, as he was expected to be in the office during certain hours each day regardless of eldercare requirements that he had, and his employment was terminated based on absences….. (Devaney, at para. 154)
Regarding accommodation, the Tribunal held that employer breached its procedural duty. Despite knowing of Mr. Devaney’s responsibilities for his mother, the employer never made meaningful inquiries, nor did anything to accommodate:
First, as set out above, the applicant did inform the respondents on a number of occasions of his eldercare responsibilities. Second, the respondents never asked the applicant about his responsibilities in relation to his mother’s health, and stated that they were not interested in hearing about such “excuses”. Third, while I agree that the applicant never made a formal request for accommodation, the respondents were aware that the applicant had eldercare responsibilities affecting his attendance, thereby giving rise to a duty to accommodate. Nevertheless, it is unfortunate that it appears from the evidence that neither the applicant nor the respondents, as professionals, ever initiated a meaningful dialogue in relation to accommodating the applicant’s eldercare responsibilities. Accordingly, I find that the respondents infringed the applicant’s rights under the Code by failing to meet the procedural aspect of their duty to accommodate the applicant’s Code-related needs. (Devaney, at para. 174)
The Tribunal held that the employer failed to accommodate the Code-related absences to the point of undue hardship. The Tribunal held that beyond “rather bald assertions” of the employer, including comments that the absences were detrimental to company morale, “there does not appear to be any evidence… describing any problems that the applicant’s absences, which include when he was working at home, were actually creating for his team or others at the office.” (Devaney, at para. 192)
The Tribunal awarded $15,000 for injury to dignity. It accepted the applicant's testimony about the devastating impact that termination had on him after a long and successful career.
Canada (Attorney General) v. Hicks, 2015 FC 599
In Canada (Attorney General) v. Hicks, the Canadian Human Rights Tribunal (upheld on judicial review) found against the federal government employer who “showed disregard and indifference towards the respondent’s family status.” (Hicks, at para. 81)
Mr. Hicks was a federal government employee being relocated from Halifax to Ottawa. His wife had to stay behind for a number of months in order to find acceptable arrangements for her ailing mother, who, because of a disability, lived in a nursing home. Mr. Hicks and his wife had to live apart, maintaining two residences for a period of time, and sought compensation for this under a federal policy covering "temporary dual residence assistance." The government employer rejected Hicks' request for compensation, saying that the ground of family status was not so broad as to capture the circumstance of an aging parent not living in the same home.
The Federal Court held that “Johnstone test” should be applied to eldercare as well as childcare, since eldercare can also engage a legal caregiving obligation (the second part of the “Johnstone test”):
I find this similar rationale can be applied for the analysis of eldercare obligation in the instant case. The prohibited ground of discrimination of family status should encompass the eldercare obligation…whose non-fulfillment can attract not only civil responsibility (Maintenance and Custody Act), but also criminal responsibility if not exercised properly… Eldercare obligation is entrenched in Canadian societal values. It demonstrates the adult children’s responsibility to their elderly parents. (Hicks, at para. 70)
On judicial review, the Federal Court upheld the award to the employee of $15,000 as compensation for the discriminatory practice and $20,000 for the reckless conduct of employer.
6. Cases Involving Family Status Discrimination in Related to Covid-19 Health and Safety Mandate
Code-based exemption to the Covid-19 health and safety mandate is rare. There are, however, successful cases.
United Steelworkers Local 2251 v Algoma Steel Inc., 2020 CanLII 48250 (ON LA)
A dual Canadian-American citizen lived in Michigan and worked in Sault Ste. Marie, crossing the border daily. The Employer, Algoma Steel Inc. is situated in the City of Sault Ste. Marie, Ontario in the District of Algoma.
After the onset of the Covid19 pandemic the federal government enacted an emergency order pursuant to section 58 of the Quarantine Act. Under that order, individuals who enter Canada from the United States must self-isolate themselves for a period of 14 days. But it exempt certain categories of persons who must cross the border regularly to go to their normal place of employment. Mr. Gendron qualified for that exemption. However, the Employer implemented a policy that any of its employees who cross the border must isolate for 14 days before attending work without any exception resembling the federal emergency order.
The implementation of this policy has been especially problematic for the Grievor employee who has two young children, aged 6 and 10, resided in Michigan, who are not entitled to cross the border to be with him while he is Canada. Pursuant to a custody order he resided with his children on his days off. The policy as administered by the Employer requires the grievor to disregard the custody order and take up residence in Canada if he wants to continue to attend work during the pandemic.
COVID rates in both locations were low. The employer policy requiring employees crossing the Canada-US border to self-isolate before returning to work in Canada would have required the Grievor to reside in Canada full-time, apart from his children. Thus, forcing the Grievor to choose between his children and attending work. The Grievor had no choice but to stop attending work so that he could comply with the custody order. The employer was ordered by the arbitrator to consider how it may accommodate the grievor under the ground of family status while maintaining a safe workplace.
Hydro Ottawa Limited v. International Brotherhood Of Electrical Workers (IBEW), Local 636, 2020 CanLII 77939 (ON LA)
The employer implemented a work from home schedule. Employees alternated working at home and in the office weekly. Employees without childcare arrangements were required to use vacation credits or unpaid leave rather than working from home.
The employer expressed concern that some employees did not work well from home, that they have the rights to implement a work schedule as they see fit, and that working at the office is good for the employees' mental health and company morale, but there were not evidence on file that the employees' in question did not work well at home, nor did any of the employees' in question had any mental health issues because of working from home remotely.
The Arbitrator held that the union established prima facie discrimination and the employer failed to demonstrate that the rule was a bona fide occupational requirement (BFOR), as no evidence was produced by the employer to prove that the work schedule was related to a legitimate work purpose.
The Arbitrator further held that there was no evidence to substantiate a claim that it was impossible to accommodate the grievors without negative economic impact. In the alternative, the union met the prima facie test set out in Johnstone v. Canada. The use of unpaid leave or vacation credits was not reasonable accommodation.
JL v. Empower Simcoe, 2021 HRTO 222
A child with a disability was resident in a group home with visitation restrictions. One of the ways the child communicated was through physical touch. The child's parents wished to visit the child while following all health recommendations except physical distancing. The request was denied.
The HRTO held that the group home failed to consider the accommodation requested, or to investigate into the subject matter or seek public health advice regarding it. The HRTO further held that the group home failed to establish that accommodating the request would lead to undue hardship.
The Home was ordered to pay $10,000 for general damage for injury to dignity, feelings, and self-respect. The Home was ordered to develop an accommodation policy for children under the age of 18, with the Tribunal stipulating specific requirements for the policy.
A prima facie case of family status discrimination may be successfully made out when an employer failed to demonstrate that the regulation or policy in question was a bona fide occupational requirement (BFOR), and that it was related to a legitimate work purpose.
There's no one-size-fit-all test for company regulation or policy impacting family status, and each workplace is different.
When you have been terminated wrongfully or you have been constructively dismissed or you have been terminated due to family status discrimination, or that you are a victim of workplace harassment or workplace discrimination, you should consults with an employment lawyer or you risk waiving your legal rights under Common law, the Human Rights Code or your rights in suing for wrongful dismissal, constructive dismissal or workplace discrimination.
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