Employment and Labour Seminar 2013: The Evolution of Family Status Accommodation


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Employment and Labour Seminar 2013: The Evolution of Family Status Accommodation

  1. 1. Employment and Labour Law SEMINARS | 2013
  2. 2. The Evolution of “Family Status” Accommodation:Practical Tips for EmployersBy Anna Abbott 2
  3. 3. The Ground of Family StatusEmployment5. (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 disabilityOHRC: Policy and Guidelines on discrimination because of family status 3
  4. 4. The Ground of Family Status“family status” means the status of being in a parentand child relationship 4
  5. 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 5
  6. 6. Accommodation in EmploymentThe principle of accommodation applies to allgrounds under the Ontario Human Rights Code,but accommodation in employment most oftenrelates to the following grounds:• Age• Creed (religion)• Sex (pregnant women)• Family status (care-giving responsibilities) 6
  7. 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 7
  8. 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 8
  9. 9. Legal Test for AccommodationStep 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 9
  10. 10. What is Undue Hardship?Undue Hardship?• Consideration under the Human Rights Code • Cost • Outside sources of funding • Health and safety 10
  11. 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• 11
  12. 12. Family Status: where we were thenDiffering 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) 12
  13. 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) 13
  14. 14. Canada (Attorney General) v. JohnstoneFacts:• 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 14
  15. 15. Canada (Attorney General) v. JohnstoneFactors 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 15
  16. 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 16
  17. 17. Canada (Attorney General) v. JohnstoneHeld:• 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 17
  18. 18. Canada (Attorney General) v. JohnstoneHeld:• 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 18
  19. 19. CNR and Denise SeelyFacts:• 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 19
  20. 20. CNR and Denise SeelyFactors 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 20
  21. 21. CNR and Denise SeelyFactors for employee:• No immediate family nearby• Daycare during standard hours only• Husband away 14 to 24 hours at a time• Requested accommodation 21
  22. 22. CNR and Denise SeelyHeld:• 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 22
  23. 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 23
  24. 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 24
  25. 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 25
  26. 26. Eldercare: Devaney v. ZRV Holdings Ltd.Held:• Companys strict attendance policy requiring Devaney to work out of the companys 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 employees preference or choice, no prima facie case will be established)• Awarded $15,000 in general damages 26
  27. 27. Accommodation ProcessEmployee 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 27
  28. 28. Accommodation ProcessEmployee obligations in accommodation process 6. Co-operate with employer 7. Facilitate implementation of accommodation 8. Advise employer if needs change 9. Accept reasonable accommodation 28
  29. 29. Accommodation ProcessEmployer 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. 30. Accommodation ProcessEmployer 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 30
  31. 31. Accommodation PolicyContents 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) 31
  32. 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 32
  33. 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 33
  34. 34. Thank Youmontréal  ottawa  toronto  hamilton  waterloo region  calgary vancouver  beijing  moscow  london34