Needs vs. Preferences and the role of Lifestyle Choices in the Accommodation of Family Status

By Amanda McLachlan – Bennett Jones

Family status has become a hot topic before provincial and federal human rights tribunals over the last year and has likewise become an intriguing issue for both employers and employees alike. Although family status is not a newly minted protected ground under either the Ontario Human Rights Code or the Canadian Human Rights Act by any means, until recently it has received very little attention. As a result, the ground was often somewhat misunderstood, with many employers and employees believing it applied only to parents with childcare obligations.
In the midst of an aging population and in an era in which the majority of parents return to the workplace after child birth, an increasing number of people have been impacted by the need to balance elder care or more traditional child care responsibilities with employment duties and obligations. This balancing exercise has resulted and will likely continue to result in an upward trend in the number of cases being heard at the Ontario Human Rights Tribunal and the Canadian Human Rights Commission, as well as several recent significant changes to the applicable test applied by both.

The Test in Ontario

The Ontario Human Rights Tribunal recently refined the applicable test for employer’s faced with accommodation requests on the basis of family status in a case involving an employee with elder-care responsibilities. In Devaney v. ZRV Holdings, 2012 HRTO 1590 the Tribunal’s findings suggest that employers must accommodate care-giving responsibilities where they are required duties, not mere preferences. Devaney was a generally well performing employee who bore primary responsibility for the care of his elderly mother. He commenced an application to the Tribunal after his employment was terminated as a result of his failure to attend work during mandatory working hours. Devaney had requested that he be permitted to work in certain circumstances from home, given his employer had the necessary technology to facilitate his request. Ultimately, the Tribunal concluded that given the nature of his elder-care giving duties were in fact true requirements, not preferences, and given the plethora of technology that could enable him to work from home, the employer should have accommodated his absences rather than upholding the confines of a strict 8:30 a.m. to 5 p.m. workday. Of particular importance in this case was a finding that the employer had failed to engage in a meaningful dialogue about Devaney’s needs and requirements. Rather than attempting to understand his reasoning, the employer had routinely dismissed Devaney’s requests out of hand. As a result of the employer’s failure to accommodate Devaney’s requests, Devaney was awarded $15,000 in damages – a fairly significant award by the Tribunal.

The Test for Federally Regulated Employees

In late January, the Federal Court of Canada released its decision in Attorney General of Canada v. Fiona Anna Johnstone and Canadian Human Rights Commission, 2013 FC 113 following a judicial review of a decision previously rendered by the Canadian Human Rights Commission. In Johnstone, the Federal Court distilled the key issue in family status accommodation cases to the following question: “whether or not the employment rule in question interfered with an employee’s ability to fulfill substantial parental obligations in a realistic way”. Johnstone was an employee of the Canada Border Services Agency (CBSA) who worked, like all other full time employees, rotating shifts. Johnstone commenced an application to the Canadian Human Rights Commission alleging that the CBSA had discriminated against her by failing to accommodate her requests for accommodation. Specifically, following a return from maternity leave, she had sought accommodation by way of a special exemption from the CBSA’s mandatory scheduling requirements which denied her the flexible scheduling she sought and which imposed ten hour shift maximums.

On review, the Federal Court rejected a line of cases arising out of British Columbia which had previously suggested that in order to successfully make out a claim of discrimination, the applicant would have to demonstrate a “serious interference” with a “substantial family duty”. In departing from these strict requirements Johnstone may have inadvertently opened the door to a new broader requirement that employers accommodate employee lifestyle choice. On review, the Federal Court rejected a series of arguments advanced by the CBSA that Johnstone’s requests for scheduling accommodation arose principally because of a “series of choices she and her husband jointly made” and which were within the couple’s exclusive control (her husband also being an employee of the CBSA). The specific “choices” leading to Johnstone’s accommodation request included the choice of where to live (Johnstone and her husband had voluntarily decided to relocate to a small town that was more than 60 kilometers away from their workplace), the size of the home purchased by the employee, the choice to have the children’s father continue to work rotating shifts, the choice to have Johnstone work only three days per week, the choice to have their children cared for by family members exclusively and ultimately, the preference not to pay for childcare. In rejecting these arguments, the Federal Court appears to be signaling a stark departure from the Commission’s prior treatment of family status cases.

What This Means for Employers and Employees

Ultimately, there is still a level of uncertainty in this area of the law which is unlikely to be resolved until the number of decisions in this area increases. Despite the uncertainty however, it does seem clear that the earlier lines of cases requiring a higher threshold for family status claims have been rejected. This shift away from tests that imposed a sort of two-tiered human rights regime in which the threshold required to demonstrate discrimination on the basis of family status seemed to be higher than the threshold required to establish a prima facie claim on the basis of other enumerated grounds is likely not surprising. The Ontario Human Rights Code and the Canadian Human Rights Act is intended to provide protection equally, across all of the enumerated grounds.

As a result of Devaney, for now, employers in Ontario may still be able to refuse accommodation that is based merely on an employee’s preferences and not related to genuine “needs”. However, employers within the jurisdiction of the Canadian Human Rights Act will likely continue to be held to a slightly higher standard. Regardless of which regime applies to your workplace, what is clear is that employers faced with accommodation requests will be well advised to follow certain best practices, including ensuring they don’t dismiss accommodation requests out of hand.