A ruling by the Human Rights Tribunal of Ontario at the end of 2016 could make it easier for employees to bring claims for family status discrimination against their employers.

The case, Misetich v. Value Village Stores Inc., involved an employee who had refused to accept certain proposed scheduling changes designed to accommodate her physical limitations. The claim alleged the proposed changes constituted discrimination on the basis of family status because they would interfere with her responsibilities to care for her elderly parent.

While the tribunal ultimately dismissed the claim because the employee was unable to provide sufficient evidence to establish her elder-care responsibilities, its discussion around the appropriate test to apply to family status cases is significant for employers, says Caitlin Russell, an associate in the labour and employment and group at Cassels Brock and Blackwell LLP.

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“The law was a little unclear up until 2014,” she says, noting that changed with the Federal Court of Appeal’s ruling that year in Canada (Attorney General) v. Johnstone. “That was mainly because family status, which is a protected ground of discrimination under the Human Rights Code, hasn’t in the past been relied on, it hasn’t been clear what it meant,” she says.

However, the 2014 case seemed to clarify what family status actually meant by setting out a four-step test for establishing discrimination on that basis. The first step was to look at whether the child or parent was under the employee’s care or supervision. The second step looked at whether the obligation at issue would engage that person’s legal responsibility for their child, “so it couldn’t just be a desire to go watch a dance class at the end of the day; it had to be their ability to actually care for their child,” says Russell.

The third step was a requirement to show the employee had made efforts to meet the obligation by exploring other options, such as arranging for a family member to pick up the child. The fourth step looked at whether the workplace rule in question, such as a scheduling requirement that wouldn’t allow the employee to get home in time, interfered in substantial a manner.

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“It was a fairly employer-friendly case because it created limits on when somebody could be discriminated against when they’d been denied a change in their schedule based on childcare obligations,” says Russell. “That was helpful for a couple of years and it clarified a lot of cases in the past where there wasn’t really a set test that we knew how to apply.”

But in Misetich, the Human Rights Tribunal of Ontario, which doesn’t have to follow the Federal Court of Appeal ruling, disagreed with the test, finding it’s too limiting and that it makes it too difficult to prove discrimination on the basis of family status. “The decision is troubling for employers, as it is inconsistent with previous decisions on family status discrimination and will create uncertainty with respect to addressing requests from employees for elder-care and childcare accommodation in the workplace,” says Russell.

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The latest ruling applies changes to the second and third parts of the four-step test. According to the decision, the accommodation in question doesn’t have to be an obligation that engages a legal duty but can just be something that has a negative impact on a family need and disadvantages the employee. It also removes the requirement for employees to show they’ve explored other options.

“For employers, the big takeaways from this case are, No. 1, the law is back to an unsettled point because it’s very likely there are going to be other decisions out there that try to rely on the previous test instead of this test,” says Russell. “It’s going to create uncertainty in the law about what you actually have to do when you get a request for a scheduling change from an employee, what your legal obligation is in responding to that.

“And, No. 2, for now at least, this is the case the Human Rights Tribunal in Ontario is going to rely on and it definitely will make these types of claims easier to bring. It’s twofold: We can see it bringing an increase in claims of family status discrimination because the test is now easier; and secondly, it creates a lot of uncertainty about what they need to do to respond to these types of requests from employees.”

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While Russell always advises employers to be careful in responding to such requests, she notes the situation is going to be a bit murkier for organizations handling them.

“I also think it’s important for employers to remember that communication is key with employees and they do have a right to request information about what that employee actually needs in order to understand the seriousness of the request and whether it actually engages their family status protection under the code,” she says.

Copyright © 2019 Transcontinental Media G.P. Originally published on benefitscanada.com

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