Written on behalf of Peter McSherry
Most Canadians are aware that they are entitled to be free from discrimination in their place of work. The federal and provincial Human Rights Tribunals hear complaints of discrimination on any enumerated ground, including race, gender, creed, ancestry, disability and family status, to name just a few.
With respect to family status specifically, many employees are unclear or uncertain of how family status accommodation relates to employment and what the right to be free from discrimination on the basis of family status actually entails in relation to employment.
In this blog, we explore discrimination in employment on the basis of family status, including how family status is defined for purposes of the Human Rights Code, how discrimination on this ground may occur and the types of remedies that are available to those who successfully prove their entitlement to damages as a result of suffering such discrimination.
Employee Terminated Before Return from Maternity Leave
The case of Cane v Jaytex of Canada Limited involved an employee who had begun working for her employer in January 2015, as its Director of merchandising. The employee commenced parental leave on December 5, 2018, after giving birth to a child, and expected to return to full-time employment approximately one year later, in December of 2019.
In the summer of 2019, during the employee’s parental leave, the employee approached her employer to discuss her return to work. In this meeting, the employer inquired about childcare measures the employee expected to undertake, and suggested that the employee hire a nanny in order to avoid enrolling her child in daycare, as the employer asserted that many children in daycares frequently become ill, which necessitates that their parents take time off of work to care for them. After this meeting, the employee enrolled her child in a daycare, for which she paid a non-refundable deposit of $4,460.
The parties met again in November of 2019, mere weeks before the employee’s scheduled return to work. During this meeting, the employee requested that, in order to accommodate her childcare needs, she be provided the option to vary her start time at the office from 9:00 a.m. instead of 8:30 a.m., and assured the employer that she would make up the lost time by working through her lunch periods. The employer asked why the employee had not hired a nanny as it suggested, and the employee advised that it was not financially feasible for her to hire a nanny, thus she had elected to enrol her child in daycare. Although the employer initially indicated being receptive to the employee’s proposed amended schedule, it instead terminated her employment effective December 16, 2019, prior to the employee’s scheduled return to work.
Discrimination in Employment on the Basis of Family Status
The employee then commenced this application in which she alleged that she had been discriminated against by the employer on the basis of her family status as a new mother, as a result of which she was entitled to compensation. The employer countered that it had undertaken every reasonable effort to accommodate the employee upon her return to work, but that “business constraints which resulted in a mass termination of employees” caused them to ultimately terminate the employee’s employment. The employer bolstered this claim by highlighting the fact that it had laid off 9 employees in February of 2020, several months after it decided to terminate the employee’s employment.
What Constitutes Discrimination in Employment?
Section 5 of Ontario’s Human Rights Code dictates that it is prohibited to discriminate against employees on the basis of any of the following grounds: race, ancestry, colour, ethnic origin, place of origin, creed, citizenship, general identity, sex, gender expression, sexual orientation, marital status, age, record of offences, disability or family status.
Section 10 of the Code defines “family status” to include any person who retains the status of being in a parent/child relationship.
Under Section 17 of the Code, employers are obligated to undertake reasonable efforts to accommodate employees, including with respect to disability and family status. In defining what constitutes reasonable efforts, the Code prescribes that such efforts include any measures necessary to accommodate the employee in question, short of causing undue hardship to the employer. Undue hardship may include significant, unreasonable expense, unavailability of suitable alternative work and applicable health and safety legislation.
Proving Discrimination Under the Code
Any person who asserts that they have been discriminated against under the Code bears the onus of proving, on the balance of probabilities (i.e., to a certainty of 51%), a prima facie case of discrimination. In order to prove such a prima facie case, the employee must demonstrate three things:
- That they possess one of the protected characteristics listed in section 5 of the Code
- That they suffered some type of disadvantage or adverse impact
- That the protected characteristic of the employee was a factor in the disadvantage suffered
Generally speaking, a prima facie case will be considered to have been made if the allegations made in the application, if proven true, validate a verdict in favour of the employee in the absence of any justification or response from the employer.
Importantly, discrimination need not constitute the sole reason for the adverse treatment, but rather may comprise one of many reasons the employee suffered discrimination.
Defining the Duty to Accommodate in Relation to Family Status
The duty to accommodate requires that the parties work collaboratively and cooperatively in order to arrive at a mutually satisfactory resolution that does not offend the Code. The parties are expected to work together and to share information in order to facilitate a suitable accommodation solution. Employees are not entitled to perfect accommodation, but rather only to reasonable accommodation.
Any employer who asserts that accommodation is not possible must demonstrate that the employee in question cannot be accommodated by the employer without causing the employer undue hardship. As such, employers are not required, for example, to create an entirely new and unnecessary role simply to keep a person employed who is unable to fulfill the duties of the job for which they were hired.
Damages Awarded to Employee
The tribunal reviewed all of the evidence offered throughout the hearing and noted the employer’s discriminatory treatment of new mothers. This treatment included begrudging women who returned to work after the birth of a child. It also included refusing to accommodate significant overtime and late work requests, which effectively “created a culture of discrimination based on sex/pregnancy and family status”. That said, the employer had also endeavoured to accommodate the employee in that they had accepted her proposed work schedule of arriving at 9:00 a.m. instead of 8:30 a.m. As such, the employee had not proven a prima facie case of discrimination on the basis of family status because of the employer’s failure to accommodate her status.
Refusing Employee Accommodations Based on Parental Status
The same could not be said, however, of the employer’s decision to terminate the employee’s employment altogether. Emails and text communications between the executives of the employer indicated that they specifically did not wish to bring the employee back to work because of parental accommodations she would require. The employer drafted a letter of termination regarding the employee immediately after an exchange between the employer and the employee, in which the parties had discussed her request for a later start time and indicated that she may not be available to work overtime at a moment’s notice. As such, the decision to terminate the employee’s employment was discriminatory, regardless of whether the plaintiff would later have been laid off, as were the 9 employees who were laid off in February 2020. This was particularly evident because the employer did not terminate any other employees in December 2019; only the employee.
The tribunal awarded the employee lost wages in the amount of $4,846. This award was meant to compensate for the income lost between December of 2019 and February of 2020, when the employee would have been laid off from her position in any event, in addition to $4,460 in special compensation for childcare expenses the employee had unnecessarily paid, and $15,000 in compensation for injury to dignity, feelings and self-respect.
Contact the Law Office of Peter McSherry Today for Assistance with Your Human Rights Complaint
If you have been discriminated against in your employment and wish to commence a human rights complaint in respect of your mistreatment, then you are in need of experienced legal counsel to assist you in order to ensure that your rights are asserted and protected at every step of the way. From our offices in downtown Guelph, Ontario, the Law Office of Peter McSherry is proud to provide thoughtful, knowledgeable legal guidance to litigants from all over Southwestern Ontario. Contact us today, either online or via telephone at 226-779-5864, and one of our friendly, professional staff will be pleased to schedule a confidential consultation for you.
