According to Statistics Canada, there are now more people in Canada aged 65 and over than there are under age 15. As a result, it is becoming increasingly common for employees to request accommodation in order to care for aging relatives. This is exactly what was at issue in the recent decision of the Human Rights Tribunal of Ontario (the “Tribunal”), Misetich v Value Village Stores Inc. Employers should be aware that the Tribunal declined to follow recent case law, and therefore, the law in this area appears to be in flux.
In Misetich, a retail employee declined a shift change on the basis that its variable work hours would interfere with her ability to care for her elderly mother. The employer requested supporting evidence in line with the test set out in Johnstone v Canada (Border Services Agency). Although Johnstone involved alleged discrimination with respect to childcare obligations, it has been considered the leading authority on family status discrimination. The Johnstone test requires that, in order for a claimant to show that there has been a prima facie case of discrimination for family status with respect to childcare, he or she must demonstrate that:
- a child is under his or her care and supervision;
- the childcare obligation at issue engages the claimant’s legal responsibility for the child;
- he or she has made reasonable efforts to meet the childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible; and,
- that the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfilment of the childcare obligation.
The Tribunal declined to apply Johnstone in the circumstances. Instead, it expressed several concerns. According to the Tribunal, it is problematic to have a different test for family status discrimination than for other forms of discrimination. It can also be difficult for employees to prove that they have a legal responsibility to provide eldercare. The Tribunal also suggested that the Johnstone test might set the bar too high by requiring claimants to try to “self-accommodate” before they can claim discrimination.
Instead, the Tribunal proposed the following framework for analysing family status discrimination claims in employment. First, the employee must do more than simply establish a negative impact on a family need: the negative impact must result in real disadvantage to the relationship, the responsibilities that flow from that relationship and/or to the employee’s work. Second, the impact of the workplace rule must be assessed in a contextual manner and “may include consideration of the other supports available” to the employee. Third, once the employee proves discrimination, the onus shifts to the employer to establish that it cannot accommodate the employee to the point of undue hardship. Ultimately, the Tribunal found that the employee failed to provide her employer with proper evidence of her eldercare responsibilities, and therefore, the proposed shift modification was not discriminatory on the basis of family status.
Given the tension between Misetich and Johnstone, it will be interesting to see if this decision is appealed. In the meantime, employers should strive to take a more contextual approach when evaluating accommodation requests – one that looks beyond whether the employee has a strict legal obligation to provide care.
Written with the assistance of Jessica Warwick, articling student.