What is Family Status Discrimination
Even if the term ‘sandwich generation’ is no longer as widely used, it’s still the reality for hundreds of thousands of Ontarians. Working adults are devoted to moving ahead in their careers while juggling the demands of young children, as well as the care needs of aging parents, often all at the same time.
This can lead to some difficult choices. Most parents have experienced feeling torn because they needed to miss a sports game or piano recital while being stuck at work. Those devoted to aging parents would love to spend as much time with their loved ones as possible, but work too can make this difficult.
While hard choices are a reality, the necessities of life should not need to be choices at all. No employee should have to choose between work and needing to provide supervision for their minor children or should have their job threatened because they were the only person who could take an elderly parent to a doctor’s appointment.
Family status is a lesser-known area of human rights protection and one that still confuses many employers and employees alike. What is family status, and what does it mean for those in the workplace?
What the Code says
Ontario’s Human Rights Code (the “Code”) defines family status as “being in a parent and child relationship.” While that can be interpreted broadly (theoretically we are all someone’s children!), it really applies to those who are providing care for elderly parents, or who have minor children too young to care for themselves. The Code protects employees from being discriminated against based on their family status in employment, in housing, and in their access to goods and services.
The prohibitions against family status discrimination were actually first included in the Code over four decades ago, but spent their first three decades flying largely under the radar. In 2005, the Ontario Human Rights Commission issued a report on the discrimination frequently faced by caregivers and noted that there was a “profound lack of awareness among employers…with respect to family status.”
How Family Status made its mark
Family status truly came to the public’s attention with the case of a Canadian Border Services employee named Fiona Johnstone. Ms. Johnstone and her husband were both border agents, and after having children she had sought to rearrange her shifts so that she could obtain childcare while she was working. Her employer denied her request, and Ms. Johnstone was forced to move to part time status in order to get the shifts that she needed.
Ms. Johnstone complained about her situation to the Canadian Human Rights Commission, but the Tribunal dismissed her application. She then proceeded through the Federal Court. After nearly a decade of legal proceedings, the Court finally issued what was then the definitive test for family status discrimination.
In Johnstone v. Canada (Border Services), 2014 FCA 110, the Federal Court of Appeal ruled that a case of family status discrimination must meet four key requirements, namely:
1- The child must be one that is in your care – not necessarily a biological child, but a child for whom you are responsible.
2- You must have a legal obligation to the child. In other words, a child old enough to care for themselves may not require a legal guardian, but young children would.
3- You must demonstrate that there is a legitimate childcare issue for which you have no reasonable alternatives. In other words, if you cannot watch your children but your spouse or partner can, that does not meet the threshold.
4- The issue must be more than ‘trivial or substantial’ to your childcare. Hence, a working parent may not make every football practice or dance class but should be available for school transportation and doctor’s appointments as necessary.
Johnstone decision was not the last authority on family status, and the Ontario Human Rights Tribunal has since taken a completely different approach.
Where the Human Rights Tribunal differs
In a case called Misetich v. Value Village Stores Inc., 2016 HRTO 1229, Ms. Misetich was a long-time employee of Value Village when she hurt her arm and required modified duties. The employer accommodated her with a varied schedule, which Ms. Misetich claimed did not suit her needs as a caregiver for her elderly mother.
Her employer required evidence proving the test above – that she was the primary caregiver, that no one else could provide the requisite care for her mother, and that she took all reasonable steps to self-accommodate. Ms. Misetich did not provide that evidence, her employment was terminated, and she ultimately brought her case before the Human Rights Tribunal.
While the Tribunal dismissed Ms. Misetich’s application, stating that she could not simply assert a family status claim without any substantiation, they also ruled that the test in Johnstone was not appropriate. Instead, the Tribunal ruled that family status should be treated similar to other accommodations, such as those made for disability. The Tribunal wrote:
In order to establish family status discrimination in the context of employment, 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. For example, a workplace rule may be discriminatory if it puts the employee in the position of having to choose between working and caregiving or if it negatively impacts the parent/child relationship and the responsibilities that flow from that relationship in a significant way.
The Tribunal added that “requiring an applicant to self-accommodate as part of the discrimination test means that the applicant bears the onus of finding a solution to the family/work conflict,” which is different from pushing them to exhaust all other avenues before meeting the threshold. Thus, the approach to assessing family status is not merely a matter of checking boxes, but instead needs to be contextual.
Once an applicant has proven discrimination, the employer is then required to accommodate, just as they are in disability scenarios, to the point of undue hardship. In this sense, family status accommodation is not unique at all, and other accommodations can offer guidance.
While the tests and approaches for family status accommodation can make this area confusing for both employers and employees, the law is clear that no individual should have their work threatened because of a crucial need for parent or child care. It is clear, however, that to constitute family status discrimination, there must be a significant impact on a caregiving obligations.
Employees in this difficult situation can consult an employment lawyer to discuss their individual options given their particular circumstances.
For employers, just like other human rights protections, having policies in place is key. Employers can build an accommodation policy, and follow it thoroughly to ensure that both sides are playing a role in the process. When difficult situations arise, we are always here to help. Contact our office today to set up a consultation.