Written by Cristina Lavecchia, paralegal, Editor, First Reference
In a recent decision (Misetich v. Value Village Stores Inc.), the Human Rights Tribunal of Ontario (the Tribunal) questioned the value of various past case laws that have introduced and applied different tests for family status discrimination, including the Johnstone test. More specifically, the Tribunal disapproved of the existence of distinct “tests” for establishing family status discrimination.
In 2006, the employee started employment with the employer.
In January 2013, the employee developed a repetitive strain injury to her left hand and arm.
The employer offered the employee temporary, modified duties that would fit her physical restrictions, but involved a more varied schedule.
However, the employee declined the employer’s offer of modified duties and wrote to the employer stating that the varied hours would place a hardship on her because she prepared evening meals for her mother who was elderly.
The employer sent a letter to the employee regarding her failure to provide medical evidence to support her ongoing absence from work, as well as her failure to provide medical evidence to support her request for family status accommodation. The employer specifically requested evidence that:
- You are the primary caregiver for your parent requiring elder care;
- The parent requiring elder care is unable to safely perform the duties which are described in the letter you wrote dated February 14, 2013;
- There is no one other than yourself who is able to provide the care you describe in the letter dated February 14, 2013;
- You have taken all reasonable steps to self-accommodate and/or resolve the conflict created by the parent who requires elder care.
Various correspondences between the employee and employee followed.
After several attempts were made by the employer to collect evidence from the employee to support her family status accommodation, the employee failed to provide such.
In the end, the employee was advised that her failure to return to work on the modified duties provided and/or her failure to provide acceptable evidence to support her request for family status accommodation, would result in the termination of her employment because of job abandonment.
On October 1, 2013, the employee’s employment was terminated for job abandonment.
Test for family status discrimination
The Adjudicator affirmed that the case law on family status discrimination is unsettled. “Different courts and administrative decision-makers have applied different tests for family status discrimination and within that ground, different tests for childcare and eldercare.”
The Tribunal summarized past case law, including the 2014 matter The Federal Court of Appeal in Canada (Attorney General) v. Johnstone.
In Johnstone, the Federal Court of Appeal developed a specific test for establishing family status discrimination. The Court of Appeal held that to establish discrimination, in the context of child care, a claimant must prove the following.
- The child is under his or her care and supervision;
- The child care obligation at issue engages the individual’s legal responsibility for that child, as opposed to personal choice;
- The individual has made reasonable efforts to meet those child care 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.
The Tribunal disagreed with prior cases that had applied distinct “tests” for establishing family status discrimination, including Johnstone. The Tribunal’s reasons included:
- There is no principled basis for developing a different test for discrimination depending on the prohibited ground of discrimination alleged;
- Different tests for family status discrimination have resulted in inconsistency and uncertainty in the law. Some of the tests are more stringent than others, resulting in different outcomes depending on the test that is followed;
- By developing different tests, the test for family status discrimination has been set higher than for other kinds of discrimination. For example, in Johnstone, the Court of Appeal held the childcare obligation at issue must engage the individual’s legal responsibility for the child, as opposed to a personal choice. The Tribunal reasoned that “to limit human rights protection to legal responsibilities imposes an unduly onerous burden on applicants”;
- The test of legal responsibility is difficult to apply in the context of elder care. An adult child’s legal responsibility to provide care for his or her elderly parent is not as clear as a parent’s legal responsibility to care for his or her minor child; and
- Some of the cases have conflated the test for discrimination and accommodation. The Tribunal did not agree that to prove discrimination, an applicant must establish the they could not self-accommodate.
The Tribunal provided the following for establishing 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. The Tribunal provided the following example: a workplace rule may be discriminatory if it puts the employee in the position of having to choose between working and caregiving or if it negatively impacts the parent/child relationship and the responsibilities that flow from that relationship in a significant way.
- Assessing the impact of the impugned rule is done contextually and may include consideration of the other supports available to the employee. These supports are relevant to assessing both the family-related need and the impact of the impugned rule on that need. The Tribunal provided the following example: if the employee is a single parent, both the family-related need and the impact of the impugned rule on the family-related need may be greater. The Tribunal noted that this is very different than considering whether an employee can “self-accommodate” because the self-accommodation approach inflicts the onus on the applicant to find a solution to the family/work conflict.
- Once the employee proves discrimination, the onus shifts to the employer to establish that the employee cannot be accommodated to the point of undue hardship. It is then that one considers whether the employee cooperated in the accommodation process; including providing the employer with sufficient information relating to the family-related needs and working with the employer in identifying possible solutions to resolve the family/work conflict. The Tribunal noted that accommodation is a joint process and it is not something that falls solely to the employee.
In the end, the Tribunal dismissed the employee’s application because she failed to make out her claim of discrimination.
The Tribunal had the following to say:
 The applicant baldly asserted to the respondent that the change in hours discriminated against her on the basis of her family status. While the applicant made this assertion, she provided no information to the respondent about the nature of her eldercare responsibilities. The only information that she gave was that she provided evening meals for her mother.
 The applicant’s ability to provide evening meals for her mother was not adversely affected by the requirement to work days, evenings and weekends. The applicant could have worked these shifts and provided evening meals for her mother, when required, in the same way that she was able to provide a meal in the middle of the day. As a result, the applicant has failed to establish discrimination. In light of this ruling, it is not necessary to consider the issue of accommodation.
At this point, it appears it is a little unclear what the future holds for the infamous Johnstone test, or the analysis and considerations provided by the Tribunal in the above case, when it comes to establishing family status discrimination.
Regardless of this uncertainty, employers should continue to adopt best practices when handling requests for family status accommodation:
- Treat employee requests for family status accommodation seriously.
- Inquire about the employee’s specific circumstances.
- Determine what barriers might affect the person who requests accommodation. Explore options for removing those barriers and accommodate by using reasonable efforts.
- Refrain from creating workplace policies, procedures or work events that operate to exclude or disadvantage persons protected under a human rights ground(s), including family status.