Procedural Makes Preferred: Employer Engagement Drives Diverging Outcomes in Two Family Status Accommodation Decisions
October 21, 2024
| By
Brendan Egan
Human Rights
Bottom Line
Two recently released decisions of the Human Rights Tribunal of Ontario (the “Tribunal”) illustrate best practices for employers handling employee requests for accommodations related to the protected ground of family status under the Human Rights Code (the “Code”): Aguele v Family Options Inc. (“Aguele”) and Cosentino v Octapharma Canada Inc. (“Cosentino”).
Background
In both Aguele and Cosentino, the employees alleged that their employer discriminated against them on the basis of family status and reprisal or threat of reprisal, contrary to the Code. The Code defines “family status” as “the status of being in a parent and child relationship”.
In Aguele, the employee asserted that her former employer discriminated on the basis of family status when it refused to modify her schedule as she had requested. The employee argued that this modification was required so that she could provide childcare for her six year old, for whom she was the sole caregiver. The employee additionally alleged that her employer retaliated against her by reducing the employee’s shifts after she put in a request to modify her schedule.
In Cosentino, the employee asserted that her former employer engaged in family status discrimination by, among other things, requiring the employee to work in office. This, the employee alleged, interfered with her childcare and eldercare obligations, of which the employer was aware when it ordered the employee to work in office. In this case, the employee’s mother was undergoing cancer treatment and the employee was the only family member who could take her to her frequent medical appointments. The events at issue occurred during the COVID-19 pandemic, a fact which made the mother’s condition particularly acute.
The Tribunal’s Decisions
The Tribunal reached opposite conclusions in these cases. It dismissed the application in Aguele, but in Cosentino found that the employee was both discriminated and reprised against. The difference in these outcomes was largely owing to the conduct of the employee and employer in their respective cases.
The Tribunal in Aguele noted that the employee did not “work collaboratively” with her former employer in “crafting an accommodation” that could address her childcare obligations. For example, the Tribunal found that the employee requested schedule modifications, only to then fail to attend those shifts when her former employer complied with her request. By contrast, the Tribunal’s reasons indicate that the employer followed best practices in attempting to accommodate the employee’s family status, such as by maintaining active communication with the employee and reasonably modifying her schedule.
Conversely, the Tribunal in Cosentino found that the employer did not reasonably accommodate the employee in light of her childcare and eldercare obligations. Specifically, the Tribunal’s reasons note that the employer was aware of these obligations, but did not meaningfully engage in the accommodation process. The Tribunal in Cosentino also found that the employer engaged in reprisal when the GM significantly reduced communications with the Applicant, suddenly required an in-office work location and ultimately terminated her employment – all events occurring after the Applicant raised her requests for accommodation.
Takeaways
The decisions in Aguele and Cosentino offer employers contrasting examples of how to deal with family status accommodation requests.
Read together, the Tribunal’s reasons in these cases demonstrate the importance of employers taking meaningful steps to accommodate employees on the basis of family status. Several best practices for employers dealing with family status issues emerge:
- Maintain open and direct communication with the employee requesting accommodation;
- Work with the employee to understand the nature of their request for family status accommodation; and
- If, after reviewing the facts, an accommodation is in order, make a good faith effort to implement that accommodation.
Employers should note that the duty to accommodate is not unlimited and employers are only required to accommodate up to the point of undue hardship. Moreover, the standard for accommodation is not perfection and employers should remember that employees are not entitled to their preferred accommodation, only one that is reasonable and appropriate in the circumstances.
Need More Information?
For more information or assistance with family status accommodation, contact Brendan Egan at began@filion.on.ca or your regular lawyer at the firm.
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