Employee Wins Family Status Discrimination Case

Written by Daniel Standing, LL.B., Content Editor, First Reference Inc.

This case reads like a cautionary tale for employers. In 2024 O.H.R.T.D. No. 862, the Ontario Human Rights Tribunal exposed the danger of adopting an inflexible approach to an employee’s challenging caregiving role at home. In the end, significant damages were awarded for the failure to accommodate and for reprisal. Other employers can avoid the same fate by understanding the rights and obligations at play in this context.

Background

The employee, a national health sales representative since 2011, requested workplace accommodations in August 2020 due to their mother’s cancer treatment and caregiving needs. Initially granted flexible hours, the employee balanced work with caregiving duties, which included transporting their mother to medical appointments and assisting with daily tasks. Their 12-year-old son was also at home for virtual learning due to COVID-19.

On October 21, 2020, the employer required the employee to shift to a head-office-based position starting October 26, despite the employee’s mother having recently broken her wrist. This led to a second accommodation request to continue working from home. The employee argued that the office shift would seriously interfere with their family obligations, especially during the pandemic. Notably, most staff were working from home due to COVID-19 restrictions.

In an October 23 meeting, the employer insisted on office attendance, stating that flexible hours were sufficient accommodation and that business needs required the employee’s presence. The employee cited COVID-19 risks and their mother’s vulnerability due to cancer treatment, but the employer suggested alternative care options for the mother and son.

The employee claimed this change imposed undue hardship and constituted family status discrimination, while the employer argued the employee chose to be the sole caregiver and that office safety protocols mitigated COVID-19 risks.

After the employee requested accommodation, the employer’s behaviour allegedly shifted negatively. The employee received a Performance Improvement Plan shortly after their request, and communication from the general manager and the new sales director significantly decreased. The employer made the employee jump through hoops to get their vacation approved (unlike other employees), excluded the employee from presenting at an international meeting, and refused to cover the registration fee for a virtual conference the employee regularly attended.

In their human rights complaint, the employee alleged both discrimination on the basis of family status, and reprisal.

The Tribunal’s decision

The Tribunal found the employer failed in its duty to accommodate the employee’s family status obligations based on several key legal principles. First, to establish prima facie discrimination, the employee needed to demonstrate membership in a protected group listed in the Ontario Human Rights Code, adverse treatment, and that the ground of discrimination was a factor in this treatment.

In this case, the Tribunal found the employee’s testimony to be consistent and reliable, while the employer’s testimony was contradictory and inconsistent. The enforced change to head-office work was deemed adverse treatment related to family status, particularly since most staff were working from home due to COVID-19. The Tribunal noted that this change would significantly impact the employee’s ability to care for their mother and ensure their son’s well-being, constituting serious interference with family obligations. The Tribunal considered the employee’s decision to continue working from home until termination a form of self-accommodation.

Additionally, the Tribunal found the employer failed to engage in meaningful accommodation discussions when the employee requested to continue working from home. The employer did not propose any compromise or alternate accommodations, only offering the previously extended flexibility for medical appointments. The failure to fully inquire about the employee’s accommodation needs and the decision to cease communication after the employee did not comply with the head-office requirement constituted a failure in both procedural and substantive accommodation under the Human Rights Code.

Lastly, the Tribunal turned to the allegation of reprisal. Proving reprisal requires evidence of an action against the employee, related to enforcing a right under the Human Rights Code, with intent to retaliate. The Tribunal found the employer’s actions, such as reduced communication and work location changes, met the reprisal test. The Tribunal awarded the employee $25,000 in general damages, $7,577.07 for lost salary, $6,621.66 for lost benefits, $51,996.15 for profit-sharing, and $13,612 for performance bonuses, plus interest, recognizing the discriminatory termination’s impact.

Key takeaways

When appropriate, employers should accommodate the caregiving needs of employees who live with vulnerable people to ensure fairness and productivity, up to the point of undue hardship. Failing to do so can lead to family status discrimination, violating human rights principles. Flexibility supports employees balancing work and caregiving responsibilities, fostering loyalty and morale. On the flip side of the coin, when an employer substantially interferes with a major parental or other family obligation, it can land in hot water and be subject to significant damages.