A recent decision of the Human Rights Tribunal of Ontario (HRTO) has created further confusion on the duty to accommodate as it relates to discrimination on the basis of family status.

Family Status – A (brief) History

Historically, there have been multiple (and conflicting) lines of cases on the test to be applied in cases of discrimination on the basis of family status. Not surprisingly, most of these cases related to childcare. Eventually, the test applied by the Federal Court of Appeal, appeared to have been adopted in Ontario by the Superior Court of Justice as recently as January 2015. The test to determine whether there had been discrimination on the basis of family status, according to those cases, was the following:

  1. The child is under the employee’s care and supervision
  2. The childcare obligation at issue engages the employee’s legal responsibility for that child (as opposed to a personal choice).
  3. The employee has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions.
  4. The workplace requirement interferes in a manner that is more than trivial or insubstantial with the childcare obligation.

We all thought the issue had finally been put to bed, but then…

MISETICH!

In Misetich v. Value Village, Ms. Misetich alleged that Value Village, her employer, had discriminated against her on the basis of family status. Ms. Misetich had refused a shift change proposed by Value Village because it would limit her ability to the care of her elderly mother. Value Village made repeated requests for information, in line with the decision in Johnstone. Eventually, Value Village terminated Ms. Misetich’s employment when she failed to provide that information. Ms. Misetich promptly filed a discrimination complaint before the HRTO.

The HRTO determined that the test elaborated by the Federal Court of Appeal imposes an unduly onerous burden on employees. Interestingly, the HRTO indicated that the test is especially unworkable in the context of eldercare, thereby drawing a distinction between the test in the context of childcare and in the context of eldercare.

The HRTO reformulated the test for discrimination in family status cases as follows:

  1. The employee need only establish a negative impact on a family need that results in a real disadvantage.
  2. The determination of whether there is a “real disadvantage” will depend on all the circumstances of the case. This may include an assessment of other supports available to the employee. For instance, a single parent’s circumstances would be assessed differently than those of a parent with a spouse.
  3. Once the employee meets the above two criteria, the onus shifts to the employer to prove that accommodating the employee would result in undue hardship. It is only at this stage that the employee’s cooperation (including providing information on what supports are available) can be evaluated by the employer.

Although Ms. Misetich wasn’t ultimately successful in this case (the HRTO found that she had failed to cooperate with the employer at step 3 of the test by not providing information on supports available to her), this decision may set the stage for a much more expansive interpretation of discrimination on the basis of family status than had previously been the case.

Now What?!

The decision has thrown into disarray an area of the law we had hoped had finally settled (or, at a minimum, was in the process of settling down). Employers would be well-advised to approach requests for accommodation on the basis of family status gingerly, and ensure they have all the information necessary before making any decisions. In particular, employers should understand the specific needs relating to childcare/eldercare and the particular circumstances of the employee making that request.