The test for demonstrating prima facie family status discrimination has received a great deal of attention over the last few years. It was initially thought that the family status test set out in Johnstone1 (the “Johnstone test”) would provide some consistency and certainty in this area of law, particularly because the Ontario Superior Court relied on the Johnstone test in its decision in Partridge2, which was later affirmed by the Ontario Court of Appeal. However, the Human Rights Tribunal of Ontario, in its recent decision in Misetich v Value Village Stores Inc.3 ("Misetich"), casts doubt on the reliability of the Johnstone test. Indeed, the Tribunal criticizes the fact that a separate test for family status discrimination exists at all.

Case background: modified duties present eldercare problem for employee

Tonka Misetich had been employed with Value Village since 2006. In early 2013, Ms. Misetich developed a repetitive strain injury to her left hand and arm and required modified duties. The employer provided Ms. Misetich temporary, modified duties, which involved a more varied schedule. Ms. Misetich refused to accept the modified duties and wrote to the employer stating that the variable hours would be a hardship for her as she was responsible for preparing evening meals for her elderly mother.

Value Village sent a letter to Ms. Misetich regarding her failure to provide either (a) medical evidence for her ongoing absence from work; or (b) medical evidence to support her request for family status accommodation. Specifically, Value Village requested evidence that:

  1. Ms. Misetich is the primary caregiver for the parent requiring eldercare;

  2. the parent requiring eldercare is unable to safely perform the duties in question;

  3. there is no one other than Ms. Misetich who is able to provide the eldercare in question; and

  4. Ms. Misetich took all reasonable steps to self-accommodate and/or resolve the conflict created by the parent requiring eldercare.

Further correspondence between Ms. Misetich and Value Village followed, but Ms. Misetich failed to provide any of the requested documentation or evidence.

Twice more Value Village wrote to Ms. Misetich and again asked for documentation in support of her request for family status accommodation. Eventually, Ms. Misetich was advised that a failure to provide acceptable evidence would result in the termination of her employment due to job abandonment. On October 1, 2013, Ms. Misetich’s employment was terminated.

The Tribunal’s critique of the Johnstone test

In Misetich, the Tribunal first turns to determining the appropriate test for establishing family status discrimination. A long line of family status discrimination cases has culminated in Johnstone, the Federal Court of Appeal case where the ground of family status under the Canadian Human Rights Act is considered.

In order to establish prima facie family status discrimination under the Johnstone test, a claimant must demonstrate that:

  1. the child is under his or her care and supervision;

  2. the childcare obligation at issue engages the individual’s legal responsibility for that child, as opposed to personal choice;

  3. the individual has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible; and

  4. the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation.

In Misetich, the Tribunal recognizes that not every negative impact on a family obligation will constitute discrimination; however, it disagrees that a distinct test for establishing family status discrimination is the solution. Rather, the Tribunal identifies the following concerns with having a separate family status test:

  1. there is no principled basis for developing a different test for discrimination depending on the prohibited ground of discrimination that is alleged;

  2. different tests for family status have caused inconsistency and uncertainty;

  3. by having different tests, it seems that the bar has been set higher for establishing family status discrimination than for other grounds of discrimination;

  4. the test of “legal responsibility” articulated in Johnstone is difficult to apply in the context of eldercare – there may be obligations that caregivers have that do not emanate from legalresponsibilities, but are still essential to the parent/child relationship; and

  5. some of the family status tests have conflated the test for discrimination and accommodation – for example, in Johnstone, an applicant must establish that he or she could not self-accommodate in order to establish discrimination in the first place.

A new approach to analyzing family status discrimination in employment

The Tribunal goes on to outline what, in its view, should guide the analysis when trying to establish family status discrimination in the employment context:

  1. 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.

  2. Assessing the impact of the impugned rule must be done contextually and may include consideration of other supports available to the applicant. This is different than requiring the applicant to self-accommodate. Rather than the applicant bearing the onus of finding a solution, the extent of other supports available to the applicant for his or her family-related needs will be part of the overall assessment.

  3. Once the applicant establishes that there has been prima facie family status discrimination, the onus will shift to the employer to establish that the applicant cannot be accommodated to the point of undue hardship. It is at this stage that the employee will have an obligation to cooperate with the employer and engage in the accommodation process.

Takeaways for employers

It is not entirely clear what the Misetich decision will mean for the adjudication of family status discrimination complaints moving forward. We may see the Johnstone test persist, or, on the other hand, Misetich could trigger further evaluation and development of the Johnstone test.

In the interim, while we wait for clarity, it will be prudent for employers to adopt a contextual approach when responding to requests for family status accommodation, as it is an approach likely to be adopted by the Tribunal. In particular, given that the Johnstone test was developed with childcare in mind, and the Tribunal has held that the “legal responsibility” test is harder to apply in the context of eldercare, employers will want to more broadly consider whether the need for accommodation has been engaged. For example, if the elder parent is truly dependent on the employee as a caregiver and the care itself is essential and furthers the elder’s quality of life, this may be sufficient even if a strict legal obligation is not made out.

Given that the Tribunal emphasizes the fact that the duty to accommodate is a two-way street, employers should ensure that employees are asked for detailed information about their family status obligations in order to engage in the accommodation process. While employees may be able to identify ways in which they can self-accommodate on their own, employers can also identify what accommodation in the workplace might be possible and assist their employees in identifying resources and support in the community.