The Ontario Human Rights Code (the “Code”) prohibits employers from discriminating against employees based on family status. This means that employers must accommodate employees who have child care responsibilities. This most often involves a request for modified schedules to allow employees to accommodate child care needs.
The scope of the duty to accommodate is still being debated by the courts and the Ontario Human Rights Tribunal; however, the most recent law from the Ontario Superior Court of Justice (Partridge v. Botony Dental Corporation) requires employers to adhere to a four-part test in determining accommodation requirements for employees’ child care responsibilities.
The four-part test to prove discrimination is as follows:
1) A child is under the employee’s care and supervision;
2) The child care obligation at issue engages the employee’s legal responsibly for the child, as opposed to a personal choice. Specifically, a parent has a legal obligation to ensure a child has safe and adequate child care while he/she is at work;
3) The employee has made reasonable efforts to meet his/her child care obligations through reasonable alternative solutions, and no such alternative solution is reasonably accessible; and
4) The impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the child care obligation.
If discrimination is established based on these four factors, the employer can be relieved of the accommodation obligation if it can show that the policy (e.g., the scheduling) is a bona fide occupational requirement and the employee cannot be accommodated without undue hardship. Each case must be considered on an individual basis.
Failure to accommodate can lead to significant damage awards. In the Partridge case, the court awarded $20,000 for injury to dignity, feelings and self-respect. Additional damages can be awarded for lost wages if the employee is terminated as a result of failing to adhere to a set schedule and the employer has failed to accommodate.
Bottom line for healthcare employers:
- All requests for schedule accommodation due to child care commitments must be considered on an individual basis. In other words, employers have to consider each case separately and cannot utilize a “one policy fits all” approach.
- Employers must communicate and work with employees to try to find a solution. Documentation is very important. We recommend that conversations be followed up with a confirmation email.
- Accommodation is not restricted to the most extraordinary situations; however, the childcare situation must be more than trivial or insubstantial.
- The employee must make reasonable efforts to find childcare that will allow him/her to work according to the employer’s schedule.
- Accommodation is required to meet an employee’s childcare needs, not preferences.
It should be noted that elder care is also covered by the definition of “family status” under the Code. As such, employers must accommodate these needs as well. It is not certain at this point whether the four-part test will be applied in the case of elder care accommodation, because employees don’t have “legal” obligations (part 2 of the four-part test) to care for parents. This issue is currently at the centre of a case before the Ontario Human Rights Tribunal (Misetich v. Value Village Inc. et. al.). Misetich has not yet been decided – we will keep you apprised of any developments. In the meantime, we advise employers to give elder care accommodation requests the same consideration as child care accommodation requests.