We often get calls from people who need their employer to change their hours of work to accommodate their caregiving responsibilities towards their children, or their parents. Sometimes the employer is required to accommodate this request; sometimes not. To read more about our blogs on this subject, click here.
The test that has been used to decide whether the employer must accommodate this request has been in flux for several years.
In the recent case of Misetich v Value Village Stores Inc., an adjudicator under the Human Rights Tribunal of Ontario revised this test so it is now easier for employees get modified hours to look after children or elderly parents.
History of test for family status discrimination
Before Misetich, the legal test followed by the Tribunal required that an employee meet the following steps:
- That the child (or parent) is under their care and supervision;
- That the caregiving obligation at issue engages the individual’s legal responsibility for that child (or parent), as opposed to a personal choice;
- That they have made reasonable efforts to meet those caregiving obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible;
- That the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the caregiving obligation.
Ms. Misetich worked straight day shifts Monday to Friday. Ms. Misetich developed a repetitive strain injury in January 2013. To accommodate this injury, she was offered a temporary modified role which required variable shifts and hours. Ms. Misetich declined the offer because the hours interfered with her ability to care for her elderly mother. In response, the employer requested evidence to show she met the characteristics under the test above.
After multiple failed attempts by the employer to obtain such evidence, Ms. Misetich was terminated from her employment.
The Tribunal Decision
The Tribunal reviewed the tests for cases involving caregiving responsibilities and took issue with the fact that there is a different test for family status discrimination than for other forms of discrimination: specifically, the test for family status discrimination is the only test that required the caregiving obligation at issue to engage a legal responsibility. The Tribunal also disagreed with the requirement that an applicant must establish the inability to self-accommodate in order to prove discrimination.
The new test was not precisely formulated so it is difficult to predict how the Tribunal will apply it in the future. It seems the new test will lower the bar for employees proving family status discrimination, as they will no longer have to prove the breach of their care obligations engages a legal responsibility.
In the Misetich case, the application was dismissed on the basis that her assertion that she was required to prepare dinner for her mother did not allege a significant care obligation the interference with which would amount to discrimination.
When your caregiving responsibilities conflict with your work obligations, your protections under the Code may be triggered. Whether you are entitled to these protections, or whether you are expected to make alternative arrangements, depends on many different factors. When considering whether to ask your employer to accommodate your caregiving responsibilities, it is important to consult a human rights lawyer, especially now that the Tribunal has devised a new test for proving family status discrimination.
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