1. Employment and Labour
Law
SEMINARS | 2013

2. The Evolution of “Family Status” Accommodation:
Practical Tips for Employers
By Anna Abbott
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3. The Ground of Family Status
Employment
5. (1) Every person has a right to equal treatment with
respect to employment without discrimination because of
race, ancestry, place of origin, colour, ethnic origin,
citizenship, creed, sex, sexual orientation, gender
identity, gender expression, age, record of offences,
marital status, family status or disability
OHRC: Policy and Guidelines on discrimination because of family status
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4. The Ground of Family Status
“family status” means the status of being in a parent
and child relationship
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5. The Ground of Family Status
• Raises complex and difficult issues for employers
related to the treatment of caregivers in the
workplace
• Accommodation of “family status” usually relates to
the needs of a caregiver
• childcare
• eldercare
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6. Accommodation in Employment
The principle of accommodation applies to all
grounds under the Ontario Human Rights Code,
but accommodation in employment most often
relates to the following grounds:
• Age
• Creed (religion)
• Sex (pregnant women)
• Family status (care-giving responsibilities)
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7. Family Status Accommodation
• Employers have a duty to consider whether they
can make adjustments to workplace policies and
procedures to accommodate needs related to
family status
• May include flexible scheduling, permitting
employees to take leaves of absence to care for
family members who are ill or have a disability,
or providing access to alternative work
arrangements
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8. Legal Test for Accommodation
• Step 1: Onus is on employee to prove “prima
facie” discrimination.
• Step 2: Once proved, onus then switches to the
employer to prove that the requirement is a bona
fide occupational requirement (BFOR) and that
they attempted to accommodate to the point of
undue hardship
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9. Legal Test for Accommodation
Step 2 breakdown:
• Purpose rationally connected to job performance
• Honest and good faith belief that it was necessary
• Standard reasonably necessary and impossible to
accommodate without undue hardship
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10. What is Undue Hardship?
Undue Hardship?
• Consideration under the Human Rights Code
• Cost
• Outside sources of funding
• Health and safety
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11. Accommodation Process
Accommodation has a procedural aspect and a
substantive aspect
• If an employer fails to go through an appropriate accommodation
process, it will have breached the Code even where it can show
that it would not have been able to accommodate the employee
without undue hardship
•
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12. Family Status: where we were then
Differing opinions:
1. Must result in serious interference with family
duty – if nothing extraordinary about employee’s
position, no discrimination (BC Court of Appeal, Campbell
River)
2. All protected Grounds should be treated the
same (Ontario Human Rights Commission, Federal Court of Appeal)
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13. Family Status: where we are now
• Canada (Attorney General) v. Johnstone, 2013
FC 113 (January 2013)
• Canadian National Railway and Denise Seely,
2013 FC 117 (February 2013)
• Devaney v. ZRV Holdings Ltd., 2012 HRTO 1590
(August 2012)
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14. Canada (Attorney General) v. Johnstone
Facts:
• Fiona Johnstone was border services officer
working rotating shifts, husband also border
services officer
• Required fixed shifts to meet childcare needs
• Loss of benefits (pension, training,
advancement) as fixed shifts only available to
part time employees
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15. Canada (Attorney General) v. Johnstone
Factors against CBSA:
• No individual assessment of Johnstone’s case
• Allowed accommodation for religious reasons,
but ignored Johnstone’s request
• Viewed family obligation as a choice
• Operational concerns were “impressionistic
assumptions” (inundated with requests, too
costly, destructive to 24 hour operations)
• No accommodation policy or training
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16. Canada (Attorney General) v. Johnstone
Justice Madamin: “childcare obligations arising in
discrimination claimed based on family status must
be one of substance and the complainant must have
tried to reconcile family obligations and work
obligations”
Factors for Johnstone:
• Tried to arrange care with family, and was
successful for some shifts
• Daycare hard to find outside regular hours
• Husband also worked shifts
• Provided options to CBSA
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17. Canada (Attorney General) v. Johnstone
Held:
• Discrimination on the basis of ‘family status’ will
be made out where an employers rule
“interferes with an employee’s ability to fulfill
a substantial parental obligation in a realistic
way”
• CBSA discriminated against Johnstone by failing
to accommodate her childcare responsibilities
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18. Canada (Attorney General) v. Johnstone
Held:
• CBSA failed to justify that variable shift policy
was a BFOR
• Awarded lost wages, pension contributions,
$15,000 general damages, $20,000 for wilful
reckless conduct of CBSA
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19. CNR and Denise Seely
Facts:
• Long time employee with CN as freight train
conductor residing in AB, on laid off status
• Recalled for temporary work in BC
• Employment terminated when she failed to
report because of childcare responsibilities
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20. CNR and Denise Seely
Factors against employer:
• Never responded to request for accommodation
• Did not provide details of job including duration,
accommodation, working conditions
• Did not follow its own extensive accommodation
policy
• Put employee in situation of choosing between
employment obligations and childcare duties
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21. CNR and Denise Seely
Factors for employee:
• No immediate family nearby
• Daycare during standard hours only
• Husband away 14 to 24 hours at a time
• Requested accommodation
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22. CNR and Denise Seely
Held:
• CN discriminated against Seely on the ground of
family status and failed to provide reasonable
accommodation
• Compensation for loss of wages and benefits,
$15,000 for pain and suffering and $20,000 for
reckless conduct by CN
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23. Eldercare: Devaney v. ZRV Holdings Ltd.
Facts:
• Architect employed with company from 1982 to
termination of employment in 2009
• Substantial care responsibilities for ailing mother
• Employer would not allow flexible work schedule
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24. Eldercare: Devaney v. ZRV Holdings Ltd.
Factors against employer:
• Attendance policy unreasonable/too strict
• No performance issues
• Failure to engage in dialogue with employee
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25. Eldercare: Devaney v. ZRV Holdings Ltd.
• Factors for employee:
• Mother on waiting list for care home, care not
available on 24 hour basis
• Required income for her care
• Available by phone and email
• Hired by client on project because of good job
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26. Eldercare: Devaney v. ZRV Holdings Ltd.
Held:
• Company's strict attendance policy requiring
Devaney to work out of the company's office had an
adverse impact on him as a result of his family
responsibilities. By failing to engage in a dialogue
with Devaney about his needs, the employer
contravened the Code.
• Adversely impacted on the basis of a
requirement imposed by his or her status as a
caregiver. (If an adverse impact is deemed to relate
merely to an employee's preference or choice,
no prima facie case will be established)
• Awarded $15,000 in general damages
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27. Accommodation Process
Employee obligations in accommodation process
1. Make reasonable effort to find outside resources
2. Advise employer of need for accommodation
3. Provide employer with sufficient information
4. Provide suggestions for accommodation
5. Allow employer reasonable time
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28. Accommodation Process
Employee obligations in accommodation process
6. Co-operate with employer
7. Facilitate implementation of accommodation
8. Advise employer if needs change
9. Accept reasonable accommodation
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29. Accommodation Process
Employer obligations in accommodation process:
1. Determine if employee requires accommodation
2. Consider all possible accommodations
3. Discuss options with employee
4. Respond within reasonable time
5. Keep written record
6. Maintain confidentiality

30. Accommodation Process
Employer obligations in accommodation process:
7. Request information
8. Consider employee’s accommodation suggestions
9. Follow-up with employee
10. Modify accommodation if required
11. Explain to employee why accommodation impossible
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31. Accommodation Policy
Contents of Policy:
• Statement of Commitment by management
• Objectives
• Request for Accommodation (who, how, contents)
• Provision of Information (medical information)
• Privacy and Confidentiality
• Accommodation Planning (contents of accommodation
plan, timelines, goals, accountability)
• Undue Hardship (basis of assessment, recourse,
implementation)
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32. Recommendations
• Be proactive with general planning and
preparation
• Accommodation policy
• Training for managers and supervisors
• Employee education
• Acknowledge and accept that you have a
positive duty to accommodate an employee to
the point of undue hardship
• Be proactive and sensitive when dealing with
specific problems
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33. Recommendations
• Engage in dialogue with employee re needs
• Assess on an individual basis
• Be wary of inflexible work hours and rigid
attendance management policies
• Document the process
• Apply policies and procedures consistently
• Gather evidence of undue hardship
• Policies must be reasonable
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34. Thank You
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