February 7, 2017
In a recent decision, Misetich v. Value Village Stores Inc., the Ontario Human Rights Tribunal (“HRTO” or “the Tribunal”) clarified the correct legal test for discrimination on the ground of family status. The decision recognizes that the requirements for establishing discriminatory treatment based on family status should be the same as those for other grounds protected under Ontario’s Human Rights Code, such as race, sex, or citizenship.
The facts in this case are relatively straightforward. The applicant employee worked at Value Village. After she was diagnosed with repetitive strain injury, the employer accommodated her by moving her to a less physically demanding retail position. However, the new position required the employee to work evening shifts, which conflicted with her obligation to care for her elderly mother. The employee’s request to have her eldercare commitments accommodated led to a protracted back-and-forth with Value Village. The employer wanted evidence that no reasonable care alternatives were available. When the employee provided none and failed to show up for her scheduled shifts, the employer terminated her employment.
The HRTO took the employee’s discrimination complaint as an opportunity to revisit the muddied waters relating to claims of family status discrimination. By way of background, different courts and tribunals across the country have applied different legal tests for family status. One of the leading tests, established by the Federal Court of Appeal in Canada (Attorney General) v. Johnstone, 2014 FCA 110, required a parent to show that he or she could not neglect their parental obligations without risk of legal sanction. The Johnstone test also required applicants to show that he or she made reasonable efforts to meet childcare obligations through reasonable alternative solutions – a requirement that effectively asks the applicant to “self-accommodate.”
The HRTO held that the same legal test applicable to all other grounds of discrimination protected under the Human Rights Code should also apply to family status. Adjudicator Scott, writing for the Tribunal, stated that while family status case law developed from a legitimate concern that not every work-family conflict should be viewed as a potential discrimination complaint, this concern could not justify a different legal test. She provided several reasons for rejecting an alternative test:
- Different tests for family status discrimination have resulted in inconsistency and uncertainty in the law (e.g. some tests are more stringent than others);
- The use of different tests has resulted in a higher test for family status;
- There may be many obligations that caregivers have that do not emanate from a legal responsibility (contra Johnstone) but which are nevertheless essential to the parent/child relationship; and
- The test of legal responsibilities is difficult to apply in the eldercare context.
Consequently, the standard discrimination test will apply to family status complaints at the HRTO: the applicant must show that he or she is a member of a protected group, has experienced adverse treatment, and that the ground of discrimination was a factor in that adverse treatment.
In terms of proving discrimination, Adjudicator Scott stated that the negative impact of one’s family status must result in real disadvantage to the parent/child relationship and the responsibilities flowing from it. Assessing the impact should be a contextual analysis that may include consideration of the other supports available to the applicant.
After clarifying the new approach, Adjudicator Scott held that the employee had not established discrimination. The employee provided almost no evidence to support her eldercare obligations, despite repeated requests from the employer. The Adjudicator emphasized that bold assertions of discrimination will not pass muster; rather, evidence as to the nature of one’s family responsibilities is required. Only when such evidence in support of the claim is provided will the onus shift on to the employer to show that it accommodated the employee up to the point of undue hardship.
As the reality of eldercare responsibilities increase in today’s society, this decision provides needed guidance by clarifying the appropriate legal test for discrimination on the basis of family status. However, one outstanding question remains: Will Adjudicator’s Scott’s statement that the assessment of negative impact “may include consideration of the other supports available to the applicant” lead to a “self-accommodation” requirement entering into the analysis through the back door? Future litigation is likely to address this unanswered question. Stay tuned.