In Misetich v. Value Village Stores Inc., [2016] HRTO 1229, the Ontario Human Rights Tribunal (“Tribunal”) considered a complaint of discrimination on the basis of family status. The Complainant in that case required an accommodation for an injury to her arm, and the accommodation offered by the company involved a change in shift requiring the Complainant to work evenings. The Complainant claimed she could not work evenings due to her obligation to provide evening meals to her 86 year old mother, and rejected the proposed accommodation. The Complainant was ultimately terminated from her employment.
In deciding the matter, the Tribunal questioned and rejected several iterations of the test for family status discrimination as characterized by various courts and tribunals – including the oft quoted test in Canada (Attorney General) v. Johnstone, [2014] FCA 110. In Johnstone, the Federal Court set out the elements of the test as follows:
(i) child is under care and supervision;
(ii) claimant’s legal responsibility for child engaged, as opposed to personal choice;
(iii) reasonable efforts to meet obligations through reasonable alternative solutions; and
(iv) workplace rule interferes in manner that is more than trivial or insubstantial.
According to the Tribunal, the problem with the tests developed by other courts and tribunals is that the test for discrimination for family status is, if even inadvertently, higher than for other kinds of discrimination. According to the tribunal, discrimination is discrimination regardless of the context.
Having made the above pronouncements, the Tribunal then went on to find that in order to satisfy the test for family status discrimination, “the employee will have to do more than simply establish a negative impact on a family need. The negative impact must result in real disadvantage to the parent/child relationship and the responsibilities that flow from that relationship, and/or to the employee’s work,[1]” and that in considering the impact of the workplace rule, there must be a “consideration of the other supports available to the applicant”.[2]
Employers, employees and unions need to be aware that Misetich may have substantially changed the legal framework for complaints of family status discrimination. The decision certainly leaves room for creative arguments to be made in cases that do not involve strict legal obligations of parents and guardians
For more information about employment law or human rights matters, please contact Brenda Comeau.
#WorkLawWednesday: every second Wednesday, Pink Larkin answers general questions about employment and human rights law. This is not intended to be legal advice and should not be relied on as legal advice.
[1] Misetich v. Value Village Stores Inc., [2016] HRTO 1229 at para 54.
[2] Misetich v. Value Village Stores Inc., [2016] HRTO 1229 at para 55.