Just when we thought the test for family status discrimination had finally been given some certainty by the Federal Court of Appeal in Johnstone v Canada, 2014 FCA 110 (“Johnstone“), the Human Rights Tribunal of Ontario (the “HRTO”) has set out yet another test.
In Misetich v. Value Village Stores Inc., 2016 HRTO 1229 (“Misetich“), the HRTO, critical of the Johnstone test, decided that applicants do not need to establish that their family obligation engages a “legal” responsibility, and relaxed the current requirement for applicants to show they have made a reasonable effort to “self-accommodate”.
In Misetich, the applicant claimed that a proposed change to her work schedule to accommodate her physical restrictions constituted discrimination on the basis of her eldercare responsibilities.
The applicant worked for Value Village Stores Inc. (“Value Village“) from April 2006 to October 2013. Initially, she worked days, evenings and on-call shifts, but in June 2010, she began working in a production position in the back of the store, working straight days, Monday to Friday.
After the applicant developed a repetitive strain injury in January 2013, the store manager offered her temporary, modified duties in retail, with varying shift hours based on need. The applicant declined the offer of modified duties, and provided the store manager with a hand-written note that said the variable hours would place undue hardship on her, as she prepared evening meals for her mother. She later provided an additional note outlining the restricted hours she could work, stating that she was unable to work evenings, weekends or on call shifts due to her “family status”, which she described as caring for her elderly mother.
In response, Value Village requested that the applicant provide medical evidence in support of her “family status” accommodation request. The applicant told Value Village that she would not share her mother’s confidential and private medical information with her employer, and provided two notes from her doctor which said that the applicant could not work outside her normal hours because she had to take care of her mother.
These notes were not accepted by her employer, in part because the applicant had failed to provide confirmation that she had done everything within her control to find alternate care arrangements for her mother, and because she had not provided the requested medical evidence. The applicant’s employment was then terminated on October 1, 2013 for job abandonment.
New Test for Family Status Discrimination
While the HRTO dismissed the application, finding that the applicant had not established discrimination and it was therefore not necessary to consider the issue of accommodation, it canvassed the existing decisions on family status discrimination, looking specifically at Johnstone.
The HRTO emphasized how administrative decision-makers had applied different tests, making this an unsettled and inconsistent area of law. For this reason, as well as the fact that these inconsistencies seemed to have created a higher threshold for family status discrimination, the HRTO advocated for one all-encompassing test for any type of discrimination, where the applicant must establish that he or she (1) is a member of a protected group; (2) has experienced adverse treatment; and that, (3) the discrimination was a factor in the adverse treatment.
The HRTO stated that it disagreed an applicant should have to establish that he or she could not self-accommodate the adverse impact of the workplace rule in order to prove discrimination. Instead, it set out the following test for family status discrimination in employment:
- the employee must establish a negative impact on a family need that resulted in a real disadvantage to the parent/child relationship and the corresponding responsibilities, and/or a negative impact to the employee’s work;
- the impact of the impugned rule should be assessed contextually and could consider if there were other supports available to the applicant; and,
- once discrimination has been established, the onus shifts to the respondent to establish that the applicant could not be accommodated to the point of undue hardship. A this stage, the applicant’s cooperation in the process would be considered, requiring the applicant to provide the respondent with sufficient information relating to their family-related needs, as well as working with the respondent to identify solutions to resolve the conflict.
Based on these factors, the HRTO determined that the applicant failed at the first stage of this test, failing to establish that her ability to provide evening meals for her mother was adversely affected by the requirement to work days, evenings and weekends.
In the aftermath of Misetich, the law on family status discrimination remains somewhat unclear. While the applicant’s Request for Reconsideration in this matter was denied by the HRTO, there has to date only been one HRTO case to cite the decision in Misetich. However, while the HRTO departed from the test in Johnstone, the basic principles behind accommodation employers should keep in mind remain the same:
- Employers need to make reasonable efforts to determine the extent of the family status-related needs of their employees as soon as possible when responding to family status accommodation requests;
- The accommodation process is a shared responsibility between employers and employees; and
- Both parties must make an effort to find a reasonable accommodation.