The Need to Make Accommodations
involves family members of employees with special needsLast edited on March 23, 2022
What Human Rights Do I Have When It Comes to Child Care Issues?
Employers are required to make a reasonable effort to meet their employees' needs regarding their family status. If this isn't done, the employer could be in violation of the Human Rights Code and face serious consequences or liabilities.
Recognising the Obligation to Provide for an Employee's Family Status, Including Special Needs Owing to Child Care Issues
The Human Rights Commission of Ontario is involved in the following case: Simpson v. Pranajen Group Ltd. o/a Nimigon Retirement Home, 2019 HRTO 10.
offered a really insightful analysis and evaluation of the extent to which businesses are required to make adjustments for workers who need them in order to care for family members with special needs.
Factual Summary
Further Factual Findings
The Ontario Human Rights Tribunal determined that Ms. Simpson’s prior performance was adequate. The Human Rights Tribunal of Ontario determined that the Nimigon requirements on work hours and illness reporting were unreasonable, among other factors.
The Law
The Ontario Human Rights Tribunal determined that Ms. Simpson’s prior performance was adequate. The Human Rights Tribunal of Ontario determined that the Nimigon requirements on work hours and illness reporting were unreasonable, among other factors.
In this case, two specific provisions of the Code are particularly relevant:
1. Section 5(1): This provision emphasizes that every person has the right to equal treatment in employment without facing discrimination based on various grounds, including family status.
2. Section 11(1): This section outlines that a person’s right under Part I of the Code is infringed if a requirement, qualification, or factor exists that, while not discriminatory on a prohibited ground, results in the exclusion, restriction, or preference of a group of persons identified by a prohibited ground of discrimination, of which the person is a member. However, there are exceptions:
(a) The requirement or qualification is reasonable and bona fide in the circumstances.
(b) The Act declares that discriminating based on such grounds is not an infringement of a right.
3. Section 11(2): This subsection emphasizes that a requirement, qualification, or factor is considered reasonable and bona fide only if it is shown that the needs of the group to which the person belongs cannot be accommodated without undue hardship on the person responsible for the accommodation. This consideration includes factors such as cost, outside sources of funding, if any, and health and safety requirements.
4. Section 25: In section 10(1) of the Code, “family status” is explicitly defined as “the status of being in a parent and child relationship.”
In the context of the case, these provisions suggest that if Jessica Simpson’s termination was based on her family status or if the changes in working conditions disproportionately affected her due to her family status, it could be considered a violation of her rights under the Ontario Human Rights Code. The reasonableness and bona fide nature of any requirements or factors must be assessed in light of the circumstances, considering the needs of the group Jessica belongs to and the potential undue hardship on the employer.
In addition, the Human Rights Tribunal of Ontario used important precedent cases that were relevant to the conclusion that discrimination had occurred. When a parent is legally obligated to take care of the responsibilities of parenthood, the jurisprudence backed up the claim that the parent should be given accommodations based on their family status.
The Federal Court of Appeal, in Canada (Attorney General) v. Johnstone, 2014 FCA 110 (CanLII) (“Johnstone”), clarified that parental obligations falling within the protected ground of “family status” under human rights legislation are substantive obligations that engage a parent’s legal responsibility to a child.
In Johnstone, the court outlined a specific test for establishing family status discrimination in the context of childcare, requiring a claimant to prove the following elements:
- The child is under the claimant’s care and supervision.
- The childcare obligation engages the individual’s legal responsibility for the child, not merely personal choice.
- The individual has made reasonable efforts to meet childcare obligations through reasonable alternative solutions, and no such alternative solution is reasonably accessible.
- The workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation.
Furthermore, Johnstone held that childcare obligations protected under the ground of family status are those that a parent cannot neglect without engaging their legal liability.
In Power Stream Inc. and I.B.E.W., Local 636 (Bender) (Re), an arbitrator referred to the term “self-accommodation” to describe the principle formulated in Johnstone. This principle asserts that an employee must prove they made reasonable efforts to meet childcare obligations through reasonable alternative solutions, and no alternative solution was reasonably accessible.
However, in Misetich v. Value Village Stores Inc., 2016 HRTO 1229 (CanLII) (“Misetich”), the Human Rights Tribunal of Ontario did not fully endorse the “self-accommodation” principle from Johnstone. Instead, the Tribunal disagreed with the idea that, to prove discrimination, an applicant must establish an inability to self-accommodate the adverse impact caused by a workplace rule. The Tribunal emphasized that caregivers may have obligations essential to the parent/child relationship that are not necessarily linked to legal responsibilities. It concluded that the same test should be applied for family status discrimination cases as for other Code grounds: the applicant must establish membership in a protected group, experiencing adverse treatment, with the ground of discrimination as a factor in the adverse treatment.
Remedy Request and Remedy Decision
Ms. Simpson asked for a remedy that included, among other things, a $30,000 payment for discrimination and a $15,000 payment for dignity damage. The Human Rights Tribunal of Ontario noted and summarized these requests, together with the review and conclusions based on Ms. Simpson’s testimony, saying as follows:
The applicant has sought monetary compensation for the harm suffered due to the discrimination. She initially requested $15,000 for the loss of the right to be free from discrimination and an additional $15,000 for injury to dignity and self-respect. During the hearing, she clarified that she is seeking a total of $30,000 in compensation for injury to dignity, feelings, and self-respect.
In her testimony, the applicant described the significant emotional impact of her termination. She experienced prolonged stress and distress, to the extent that she consulted her family doctor about it. The doctor recommended anti-anxiety medication, but she declined due to concerns about potential side effects affecting her ability to parent.
The loss of employment income had tangible consequences, leading to difficulties in paying bills on time and feeling like a failure in providing for her family. Financial constraints prevented her from affording speech therapy for her eldest son with autism, further contributing to feelings of inadequacy. To meet financial obligations, she had to take a second mortgage on her house with a high-interest rate, resulting in substantial stress and strain on her relationship with her spouse. The financial struggles also led to frequent arguments witnessed by her children, causing additional distress.
The applicant expressed that the termination made her feel undervalued as a Personal Support Worker (PSW). Even after finding new employment, she experienced anxiety for an extended period, fearing a similar lack of recognition and termination. While her current employer values her work, the fear of termination lingered, highlighting the lasting impact of the discriminatory treatment.
The Tribunal found the applicant’s testimony about her feelings and the impact of discrimination to be credible and reliable. The disregard for her childcare needs and the subsequent termination caused significant stress and emotional harm, especially considering the vulnerability associated with having a child with autism. The applicant’s testimony reflected the added stress that parents experience when providing childcare for a child with special needs and the heightened vulnerability when they feel inadequate in fulfilling their parental responsibilities.
The Human Rights Tribunal of Ontario agreed and gave Ms. Simpson the $30,000 in compensation after reviewing a number of earlier rulings, such as Arunchalam v. Best Buy, 2010 HRTO 1880, Chittle v. 1056263, Ontario Inc., 2013 HRTO 1261, and Conklin v. Ron Joyce Jr. Enterprises Ltd. o/a Tim Horton’s, 2017 HRTO 723. The Human Rights Tribunal of Ontario made the following statement after reviewing these earlier rulings and determining the compensation:
In this case, the Tribunal has decided to award $30,000 in compensation for injury to dignity, feelings, and self-respect. The decision to arrive at this amount is based on the considerations outlined in Arunchalam v. Best Buy, 2010 HRTO 1880, which includes two primary criteria:
Objective Seriousness of the Conduct: This recognizes that the level of injury to dignity, feelings, and self-respect is generally more serious depending on the objective severity of the discriminatory conduct. For instance, termination from employment for discriminatory reasons is considered more severe than a one-time discriminatory comment. Prolonged, hurtful, and serious instances of discrimination lead to greater injury.
Effect on the Applicant: This criterion takes into account the particular experience of the applicant in response to the discrimination. Damages are assessed higher when the applicant has experienced significant emotional difficulties as a result of the discriminatory event, especially if their particular circumstances make the effects particularly serious.
Although the applicant could not point to a case involving termination due to childcare obligations where the Tribunal found discrimination and awarded $30,000 for injury to dignity, feelings, and self-respect, the Tribunal noted that it has frequently awarded compensation of $30,000 or more in cases where employment was terminated due to discrimination on grounds other than family status. The Tribunal drew a parallel with cases where termination occurred due to disability-related issues, emphasizing the similarity between an employee being unable to attend work due to disability and the applicant’s situation, where she would be unable to attend work due to family status.
Referring to Conklin v. Ron Joyce Jr. Enterprises Ltd. o/a Tim Horton’s, 2017 HRTO 723, the Tribunal highlighted that in cases where employment was found to be lost for discriminatory reasons, compensation for injury to dignity, feelings, and self-respect has varied considerably, typically ranging between $10,000 and $35,000. In this case, the applicant lost long-term employment, and the Tribunal determined that her particular experience in response to the discrimination was very serious, considering her vulnerability given her responsibilities and feelings towards her children. Consequently, the compensation awarded is at the high end of the range, amounting to $30,000.
Summary Comment
Workers who need flexibility in their schedules, among other things, in order to accommodate family members with special needs—like children or others—should have the necessary accommodations from their employer. If an employer does not allow for flexibility, this could be considered a violation of the Human Rights Code and could result in serious consequences for the company.
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