What’s the Status of Family Status Accommodation in Ontario?

Many Ontario children will begin their winter break soon. As joyous an event as this may be for the children, it can also be a headache for parents who have to arrange for child-care while they still have to attend work. Most parents at some point must juggle their obligations as parents and as workers, this can sometimes become quite difficult if not impossible.

The Human Rights Code in Ontario prohibits discrimination based on family status, which is the status of being in a parent-child relationship. Using this protected ground, parents could theoretically require their employer to accommodate them to allow them to attend to their parental obligations.

While this right exists theoretically, its articulation has been the cause of some debate in different courts throughout Canada. When does an employer have to accommodate an employee’s family obligations? Currently, there are at least three different tests to answer that question, one in B.C., another at the Federal level, and a third in Ontario. This article will address the test in Ontario as set out in the Human Rights Tribunal of Ontario (HRTO) decision in Misetich v. Value Village Stores Inc., 2016 HRTO 1229 (CanLII).

The HRTO took the view in that case that the test to determine whether there has been discrimination on the grounds of family status should be the same as the test used to prove other forms of discrimination. This test is as follows:

1. Are you someone who is in a parent-child relationship?
2. Have you experienced adverse treatment at work such as a shift change?
3. Is the fact that you are in a parent-child relationship a factor in your adverse treatment at work? In other words, has the shift change caused you to have to chose between working and caring for your child, for instance, or has the change altered your parent-child relationship in a significant way? The supports that are available to you to care for your child will be of significance in this analysis.

If you can prove that the answer to all three of these questions is yes, then the employer must prove that the adverse treatment:

1. is a Bona Fide Occupational Requirement;
2. results in you being unable to perform the essential duties of your job; or
3. that accommodating you would cause the employer undue hardship.

If the employer cannot show that any of these defences apply to your cases, then discrimination will be made out.

Not all situations where the parent must juggle obligations related to their child and their work will result in a finding of discrimination by the employer. In the case of summer vacation, summer camp and day camp are solutions often used by parents to delegate their child-care obligations onto others. However, rotating shift workers with small children may need to be put on a fixed day-time schedule to ensure that they can care for their children after day-care has ended.

Some parents are more vulnerable to family status discrimination. Single parents, parents with young children, parents with a limited social network, and parents working non-traditional hours may have significant problems in juggling their work and parental obligations.

Even parents in such situations would have to show, however, that they cannot reasonably self-accommodate their child-caring needs by having the other parent or another relative or trusted friend take care of the child. If another child-care arrangement cannot reasonably be made, then the employer would have a duty to accommodate the parent to the point of undue hardship. The parent should cooperate with the employer to ensure that an accommodation can be found, and the parent is not entitled to their preferred accommodation but only to an adequate accommodation. Parents should, therefore, keep an open mind when working with the employer to find a solution to their child-care needs.