OHRT releases important decision on family status discrimination

8 avril 2021 | Catherine Phelps

( Disponible en anglais seulement )

In Kovintharajah v Paragon Linen & Laundry Services Inc.,[1] the Human Rights Tribunal of Ontario (the “Tribunal”) provided clarity on the test for family status discrimination and awarded one of the highest ever damages awards for this class of discrimination. This decision offers important insight to employers on how to navigate family status accommodation.

The Facts

The applicant worked as a machine operator at the respondent’s commercial laundry facility. The applicant and his wife had three young children aged 6, 4 and 2, and also lived with his wife’s elderly parents. The applicant’s in-laws had significant health and mobility issues and were not able to care for the children for more than a few minutes at a time. As a result, either the applicant or his wife had to be at home almost all the time.

In 2016, after returning to the workforce following her last pregnancy, the applicant’s wife found a job where she worked an evening shift from 3:00 p.m. to 11:00 p.m. The applicant approached the respondent and asked that he be permitted to leave work at 2:30 p.m. so he could care for the children while his wife was at work. The respondent approved the applicant’s request for accommodation and allowed the applicant to work from 6:30 a.m. to 2:30 p.m.

In the summer of 2017, the respondent posted a notice stating that employees would only be permitted to leave their shifts early twice a month and with 48 hours’ notice. This new policy was implemented by a new general manager with the aim of enforcing compliance with the schedule and ending the “gravy train.”

The applicant believed that this new policy did not impact his existing accommodation and so he continued to leave work at 2:30 p.m. In response, the general manager imposed progressive discipline on the applicant, including a written warning and a five-day suspension. Within weeks of the new policy being implemented, the respondent terminated the applicant for cause for violating the policy.

Prior to his termination, the applicant had taken steps to cooperate with the respondent with respect to his accommodation. After his initial discipline, the applicant advised the respondent that his wife was seeking to change her work schedule so he could remain at work until 4 p.m., but that it would take a few months before this new arrangement could be put in place. For its part, the respondent made no efforts to work with the applicant on his accommodation and instead enforced zero-tolerance for violation of the scheduling policy.

Key Takeaways

This decision is notable in several respects. Importantly, the Tribunal clarified that the test for family status discrimination in Ontario is no different than any other protected ground covered by the Ontario Human Rights Code (the “Code”). At the federal level, the Federal Court of Appeal has adopted a more stringent test for family status discrimination that requires employees to establish that their childcare obligations engage their legal liability.[2] Similarly, in British Columbia, the threshold for family status discrimination is higher and requires employees to establish that there is a “serious interference with a substantial parental or other duty.” [3] In Paragon Linen, the Tribunal made it clear that the test for discrimination in Ontario is the same in all cases, including family status discrimination cases. That is, the applicant must establish that they are a member of a protected group, that they have experienced adverse treatment, and that the ground for discrimination was a factor in the adverse treatment.

Further, the Tribunal shed light on what is required of the duty to accommodate in the family status context. The Tribunal found that the applicant took appropriate steps to engage in the accommodation process by advising the new general manager of his family status and investigating possible solutions, including having his wife change her shift. The respondent did not engage in the accommodation process and instead immediately imposed disciplinary measures culminating in termination. The Tribunal held that by failing to participate in the accommodation process, the employer failed in its procedural and substantive duty to accommodate the applicant’s family status needs.

Finally, the remedy awarded by the Tribunal was significant. The applicant was awarded $50,000 comprising $20,000 in general damages and $29,724.39 in lost wages. To date, this is the highest award made by the Tribunal in a family status discrimination case.

Conclusion

In the era of the “sandwich generation” and “work from home,” many employees are juggling their work obligations with significant family obligations, including caring for minor children and elderly parents at the same time. This decision offers an important reminder for employers to meaningfully engage in the accommodation process with employees who are in these circumstances. The Tribunal has made it clear that family status obligations must be taken just as seriously as any other protected ground under the Code.


 

[1] 2021 HRTO 98 (“Paragon Linen”).

[2] See Canada (Attorney General) v. Johnstone, 2014 FCA 110 (CanLII).

[3] See Kenworthy v. Brewers’ Distributor (No. 2), 2016 BCHRT 54 (CanLII).

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