We begin our discussion with the following basic demographic fact: Canada has an aging population. Indeed, the population of those over the age of 65 has surged to nearly five million over the past five years (an increase of 14.1 percent). According to Statistics Canada, in 2007, approximately 1 in 5 Canadians aged 45 years and older provided care to a senior.1 More than half of these caregivers (57 percent) were employed.
The Ontario Human Rights Code (the “Code”) provides that every person in Ontario has a right to be free from discrimination and harassment on the basis of family status. “Family status” is defined as “the status of being in a parent and child relationship”. This ground has been part of the Code since 1982.
What happens when the demographics meet the protections afforded under the Code? A recent case from the Ontario Human Rights Tribunal, Devaney v. ZRV Holdings Limited2, stands for the proposition that an employer has a legal obligation to accommodate an employee who has elder care responsibilities.
Lyndon Devaney, an architect and employee with ZRV Holdings Limited, was dismissed in January 2009 after 27 years of service. Beginning in 2007, Mr. Devaney became the primary caregiver for his disabled mother. As a result, Mr. Devaney was frequently late for or absent from work.
In July 2007, the senior partner at ZRV sent an e-mail to Mr. Devaney in which he raised concerns about Mr. Devaney’s absences and late arrivals. Mr. Devaney was told that he had to be present at the office between the business hours of 8:30 a.m. to 5 p.m. Mr. Devaney replied that his work could be done remotely from home, outside core business hours with the aid of technology. ZRV nevertheless maintained that Mr. Devaney needed to work at the office. Despite the quality of his work product and his 1,500 hours of overtime, ZRV ultimately terminated Mr. Devaney’s employment in January 2009 as a result of his ongoing absences. Mr. Devaney brought an application to the Tribunal, alleging that he was discriminated against on the basis of family status.
In response to the allegations, ZRV took the position that it had cause to dismiss Mr. Devaney for his absences from the office. ZRV also argued that since Mr. Devaney had never sought formal accommodation, it had not failed to accommodate him.
After reviewing the existing legal tests with respect to family status, the Tribunal opted for a new test, which focused on the distinction between the needs and preferences of applicants with caregiving responsibilities. The Tribunal found that in order to make out a prima facie case of discrimination on the basis of family status, an applicant will be required to demonstrate the following:
- The applicant has been adversely impacted by a requirement imposed by his or her status as a caregiver; and
- The adverse impact relates to the applicant’s need(s) rather than only to his or her preference or choice.
If an adverse impact is deemed to relate merely to an applicant’s preference, no prima facie case will be established. The Tribunal found that the strict attendance policy requiring Mr. Devaney to work at the office did have an adverse impact on him as a result of his status as a caregiver for his elderly mother. By failing to engage in a dialogue with Mr. Devaney about his needs, ZRV had not explored potential accommodation measures and had therefore, infringed its duties under the Code. The Tribunal ultimately awarded Mr. Devaney $15,000 in general damages.
What does this mean for employers?
- This decision confirms that elder care responsibilities fall within the scope of family status under the Code. Therefore, employers should be flexible about absenteeism, hours of work, telework and leaves of absence when an employee indicates this is as a result of a need to take care of an elderly parent.
- Until we hear otherwise from a higher court, rely on the Tribunal’s new analysis in responding to an accommodation request. This means that employers will need to evaluate whether the request represents a need or is merely a preference. This exercise should involve a meaningful dialogue with the employee requesting accommodation to assess the scope of the employee’s caregiver responsibilities and the options that can best meet his or her needs. It is important that employers document all discussions and decisions made as part of the accommodation.
- Keep in mind that an employer is only obligated to provide reasonable accommodation. This means that an employee should not expect an ideal response to their request. Moreover, accommodation is a two-way street. Employees should provide their employers with information that will assist in creating an accommodation.
- Consider whether your organization can provide employees with elder care responsibilities additional support as an employment-related benefit. We are aware of at least one organization that provides back-up home care for employees who are assisting their elderly parents. (see www.kidsandcompany.ca)