As employee requests for accommodation on the basis of family status become more common, employers have been attempting to ascertain their specific obligations. Unfortunately, the case law surrounding family status accommodation has contained little in the way of definable markers, and divining an employer’s specific responsibilities has become increasingly difficult. However, a decision of the Ontario Human Rights Tribunal, Devaney v. ZRV Holdings Limited, has recently provided some assistance by establishing a new test that focuses on the distinction between the preferences and needs of employees.
Devaney had been an architect with ZRV Holdings for 25 years when in 2007 his physical presence at work began to decrease. As Devaney was a leader for a major project, ZRV required that he be physically present at the office during regular working hours. Nevertheless, Devaney continued to work remotely as necessary to tend to his elderly mother. On January 9, 2009, ZRV terminated Devaney’s employment for just cause, citing his “abysmal” physical attendance record as the basis for the termination. Shortly after his termination, Devaney began working as a private contractor for a major ZRV client and brought an application against ZRV before the Tribunal.
In determining whether ZRV violated its duty to accommodate Devany on the basis of family status, the Tribunal canvassed tests already adopted by the Canadian Human Rights Tribunal and the British Columbia Court of Appeal. The Tribunal then established the following test to determine whether a prima facie case of family status discrimination exists:
- Has the employee demonstrated that he or she was adversely impacted by a requirement imposed by his or her status as a caregiver; and
- Did the adverse impact relate only to the employee’s preference or choice, as opposed to his or her needs?
If the adverse impact is deemed to relate merely to an employee’s preference or choice, prima facie discrimination will not be established. In the case at hand, the Tribunal found that ZRV’s attendance policy had an adverse impact on Devaney as a result of his status as a caregiver for his elderly mother. By strictly insisting on the attendance requirements rather than engaging in a dialogue with Devaney about his needs and exploring potential accommodation measures, the Tribunal found that ZRV contravened the Code and awarded Devaney $15,000 in general damages.
This case confirms that elder care responsibilities (at lease those based on a parent-child relationship) fall within the scope of family status under the Code, and provides much-needed guidance in determining whether a prima facie case of family status discrimination exists. When faced with an accommodation request, employers must take care to evaluate it thoroughly and objectively, and not rely exclusively on the strict language of existing policies that might appear at first blush to govern the situation at hand. In light of this decision, employers are also encouraged to keep the new test in mind during the evaluation process, and determine whether the employee is basing his or her family status accommodation request on legitimate needs versus mere choices or preferences.