The evolution of family status protections
Defining family status
The Human Rights Code provides protections for some relationships under the ground of family status; however, it is narrowly defined to include only the status of being in a parent-child relationship. In Moffatt v. Kinark Child and Family Services, (1998), 35 C.H.R.R. D/205 (Ont. Bd. Inq.), the Board of Inquiry confirmed that the ground of family status affords protection to adoptive families, foster-family relationships and LGBTQ parents.
There is no protections for individuals providing care for an adult sibling living with a disability nor providing elder care for an aging uncle or grandparent. Given the importance of the extended family in some cultures, there may be other situations in the future that gain protection.
Evolution of family status protections
Over the last few years, the law related to discrimination on the basis of family status has changed and evolved.
In 2014, the Federal Court of Appeal seemingly enunciated the test to establish a prima facie case of family status discrimination, putting to rest the long-standing debate about whether to use a restrictive or liberal approach. As expected, the Federal Court determined that the liberal approach was to be followed.
In Canada (Attorney General) v. Johnstone, 2014 FCA 110 (CanLII), the Federal Court of Appeal outlined the requirements for an employee to establish a prima facie case of family status discrimination. In this case, the matter of family status related to child care obligations; however, the test could be modified to apply to other family status protections such as, parental care.
The elements of the test are as follows:
A child is under the complainant’s care and supervision;
The childcare obligation at issue engages the the complainant’s legal responsibility for that child, as opposed to a personal choice;
The complainant has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible; and,
The impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation.
However, the test for family status under Johnstone was rejected by the Human Rights Tribunal of Ontario (“the Tribunal”) and a new test was established in Misetich v. Value Village Stores Inc., 2016 HRTO 1229 (CanLII). In this case, the family status matter at issue involved elder care obligations.
The Complainant alleged that proposed changes to her work schedule to accommodate her physical disabilities discriminated against her on the basis of her parental care obligations. Ms. Misetich declined the temporary modified offer on account of her family care obligations. The employer relied upon the test in Johnstone with applicable modifications and requested the following information from Ms. Misetich, to no avail:
Evidence that the complainant is the primary caregiver for the parent requiring elder care;
The parent requiring elder care is unable to safely perform the duties described;
There is no one other than the complainant who is able to provide the care described; and
The complainant has taken all reasonable steps to self-accommodate and/or resolve the conflict created by the parent who requires elder care.
Value Village terminated Ms. Misetich’s employment on the basis that she failed to provide the required information outlined above.
The Tribunal took issue with “the notion that there is a different test for family status discrimination than for other forms of discrimination” and further, with the test’s requirement to “engage legal responsibility.” The Tribunal concluded that the test under Johnstone “conflated the test for discrimination and accommodation.” The Tribunal rejected the requirement that a complainant must self-accommodate.
The legal test for family status
In Misetich v. Value Village Stores Inc., 2016 HRTO 1229 (CanLII), the Tribunal determined that ”[i]n order to establish family status discrimination in the context of employment, 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.” Further, assessing the impact of the impugned rule should be “done contextually and may include consideration of the other supports available to the applicant. These supports are relevant to assessing both the family-related need and the impact of the impugned rule on that need.”
The Tribunal clarified that considering the supports available is fundamentally different to the previous requirement to self-accommodate. The Tribunal explained, “Requiring an applicant to self-accommodate as part of the discrimination test means the applicant bears the onus of finding a solution to the family/work conflict; it is only when he/she cannot that discrimination is established. This is different than considering the extent to which other supports for family-related needs are available in the overall assessment of whether an applicant has met his/her burden of proving discrimination.” Further, the responsibility of the complainant flows from the nature of the relationship, instead of flowing from a legal responsibility.
Ultimately, the Tribunal dismissed the application, finding that Ms. Misetich had not established discrimination.
The test for family status discrimination in employment is as follows:
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.
An employer can circumvent their obligation to accommodate if they can demonstrate that it would cause undue hardship.
This test was subsequently relied upon in Thapa v. Suisha Gardens Limited Les Jardins Suisha Limitée, 2016 HRTO 1316 (CanLII).
Examples of discrimination on the basis of family status
There are many neutral requirements that could have an adverse effect on an employee due to family-status obligations. For example, compelling an employee to work during a specific time period. If a workplace rule or requirement places an employee in a position where they must choose between their employment and caregiving obligations, the negative impact on the parent-child relationship could amount to discrimination. The family status need and the impact of the impugned rule could be greater on a single parent.
However, family trips or extracurricular activities, for example, while important to a parent and child do not have an “immutable characteristic” as they flow from parental choices rather than obligations. As such, an employer would not be required by law to accommodate voluntary activities.
What should you do?
Clear and open communication is important in these processes. The employer should ensure they have a full understanding of the employee’s needs, as well as, their obligations (childcare or eldercare), at the outset of the accommodation process. It is important to explore potential options with the employee in a cooperative manner. Providing temporary accommodations to allow the employee to arrange alternate child care or elder care options transitionally is an ideal temporary solution while the accommodation process is ongoing. A large employer may also consider programs through employee assistance plans, assisting the employee directly with options for alternative solutions, or providing child care in house, for example.
The basic principles relied upon in accommodation processes should also be considered:
Make reasonable efforts to determine the extent of the employee’s needs as soon as reasonably possible.
Remember that the accommodation process is a shared responsibility between the employer and employee. Both parties must make a reasonable effort to find an appropriate accommodation.