In this issue

The Editor's Corner

Who's responsible for who? Family matters.

What do I do with the kids? Finding a reliable babysitter – now an employer issue

What about the old people?

Need a couple of days for family responsibilities?

A fox in the henhouse – growing your business beyond family members

What about the old people?
Michelle Black

The basis of family status extends beyond childcare; there is also the developing issue of eldercare, that is, when members of the workforce need to take time away from work in order to tend to the needs of elderly and infirm parents. The Ontario Human Rights Tribunal was asked to deal with this very issue in Devaney v. ZRV Holdings Limited (2012 HRTO 1590).

The facts

The Applicant had worked for ZRV Holdings Limited ("ZRV") for 27 years (most of his career) as an architect and, for quite a while, his mother had been suffering from various health issues. In 2008, his mother was rendered entirely incapacitated and the Applicant was the primary caregiver. Due to his mother's various health issues, the Applicant was required to be away from the office (either to be fully absent from work or to work from home) on many occasions to attend to his mother's care, take her to appointments, etc. This absenteeism was of concern to ZRV who sent various correspondences to the Applicant letting him know that his poor attendance was unacceptable and that it needed to be improved or he would be terminated for cause. Based on what ZRV considered to be a failure to improve, the Applicant's employment was terminated on January 9, 2009. Subsequently, the Applicant filed a complaint with the Human Rights Tribunal.

The issue

The Tribunal determined that the question to be decided was:

... whether the respondents' requirement that the Applicant attend the office during certain hours, except when he had a business meeting outside of the office, and the respondents' ultimate termination of the applicant's employment for failing to attend at the office as required, resulted in discrimination against the Applicant on the basis of family status.
(para. 99)

The Applicant argued that he had "significant elder care responsibilities towards his mother" and that those responsibilities are "included in the Code ground of 'family status'" (at para. 100). It was also the Applicant's position that family status is not only discrimination because "a person is a mother, father, son or daughter, but discrimination connected to the identity and circumstances of an applicant's family member" (at para. 102; emphasis added).

In response, ZRV argued that the Applicant did not establish a prima facie case of discrimination based on family status. It also argued that an employer need not accommodate all conflicts between work and parental obligations and not all conflicts can give rise to a find of discrimination. Importantly, ZRV argued that:

If it is the caregiver's choice, rather than family responsibilities that preclude the caregiver from attending work, a prima facie case of discrimination on the basis of family status is not established...
(para. 108)

ZRV attempted to argue that there was no difference between the Applicant's care giving responsibilities and those of anybody else, that there was no evidence that the Applicant was "uniquely qualified" to care for his mother and that he could have hired someone to provide care services or admitted his mother to a long term facility but that he "chose" not to:

[t]hey submit that the applicant chose to spend time with his mother rather than attend the office as required by his employer, and that, while his devotion to his mother is laudatory, such devotion does not create a family duty or obligation protected by the Code.
(para. 109)

The decision – prima facie discrimination

The Tribunal adopted the appropriate analysis (i.e. it determined first whether a prima facie case of discrimination had been made out). The Tribunal rejected the idea of establishing a higher test or threshold for family status discrimination and distinguished between absences that were required versus absences that were made by choice.

In determining whether the Applicant was required to attend to his mother's care, the Tribunal considered the evidence presented from the Applicant with respect to the various appointments and ways in which he needed to care for his mother. In contrast, ZRV had provided documentary evidence in terms of timesheets, logs, etc. to demonstrate his various absences.

While arguably not providing a definite response to ZRV's assertion that the Applicant should have hired someone to care for his mother (or "put" her in a home), the Tribunal looked at whether the Applicant was required to tend to his mother's care.

Ultimately, the Tribunal determined that the Applicant had established a prima facie case of discrimination, finding he had been required on many occasions (although not all to which he had attested) to be away from the office due to his elder care responsibilities. The Tribunal found that he had been terminated because of these absences.

The Tribunal noted that ZRV had been aware of the Applicant's elder care responsibilities and that:

... given the applicant's care responsibilities to his mother, the respondents' requirement that the applicant be in strict attendance at the office each day had an adverse impact on the applicant, as he was expected to be in the office during certain hours each day regardless of elder care requirements that he had, and his employment was terminated based on absences, a significant portion of which were required due to his family circumstances. I find, therefore, that the applicant has established a prima facie case of discrimination on the basis of family status.
(para. 154)

The decision – duty to accommodate

The Tribunal then went on to determine whether ZRV had fulfilled the duty to accommodate to the point of undue hardship. The evidence showed that ZRV was aware that the reason for many of the Applicant's absences was because he was caring for his mother. ZRV tried to argue that company policy was such that if an employee needed accommodation, the company would wait for the employee to approach and ask for whatever accommodation was needed. ZRV also argued that it did not require proof of the Applicant's mother's illness and that it did not want to pry into his personal affairs. The Tribunal rejected ZRV's "hands off" approach and found that:

... being aware that the applicant had eldercare responsibilities affecting his attendance, the respondents had a duty to consider and explore the possibilities of accommodating the applicant's needs related to his elder care responsibilities.
(para. 172)

The Tribunal found that ZRV failed to do this and did not "engage in any dialogue whatsoever with the applicant concerning his needs related to his elder care responsibilities and the possibility of accommodating those needs" (para. 172). The Tribunal rejected any argument that the Applicant had failed to fulfill his part of the accommodation process (i.e. to communicate what accommodation he would require because ZRV was aware that the Applicant had these family responsibilities). ZRV should have asked what could be done to accommodate the Applicant's circumstances.

The Tribunal did not accept ZRV's argument that the Applicant's working from home negatively affected morale and impeded on the Applicant's ability to fulfill his work responsibilities since the Applicant was quite reachable at home and he completed his work duties on time to the client's satisfaction.

The Tribunal found that there was no evidence of undue hardship arising from the Applicant's absences from the office and held there was:

Insufficient evidence to establish that accommodating the applicant's limited number of Code-related absences would have created problems for his team or others at the office amounting to undue hardship within the meaning of the Code.
(para. 192)

Interestingly, after ZRV terminated the Applicant, the Applicant asked for a second chance. ZRV offered to take the Applicant back under a contract, the terms of which were very similar to the original employment arrangement but would last for only three months, after which the relationship would be reviewed. ZRV argued that the contract was a form of accommodation in response to the Applicant's request to be given another chance but this argument was outright rejected by the Tribunal. Notably, the Tribunal also rejected the Applicant's argument that ZRV's attempts to manage his absence were vexatious or could constitute harassment.

Overall, the Tribunal found that ZRV discriminated against the Applicant on the basis of family status and failed in its duty to accommodate to the point of undue hardship. As a remedy, based on the Applicant's "considerable loss of self-respect, dignity, and confidence", the Tribunal awarded $15,000.00. The Tribunal also ordered that the Respondents were to develop a workplace human rights policy that included the duty to accommodate and to provide mandatory human rights training throughout the organization.

What this means to you?

Although the question of whether caring for an elderly parent can form the basis of a complaint of family status discrimination is an emerging and arguably novel legal area, one take-home message is not new: an employer must not "look away" under the guise of respecting an employee's privacy when a question arises as to whether there is a need to accommodate. As always, the specific facts of the case must be examined to determine whether discrimination exists and whether the employer accommodated to the point of undue hardship.

In this particular case, the Applicant was clearly dealing with family circumstances that required him to either be completely absent or to work away from the office. ZRV was chastised for not engaging in a discussion with the Applicant with respect to the Applicant's needs and in what ways he could possibly be accommodated. The Tribunal noted that ZRV was aware of the ongoing family responsibilities that the Applicant had but that it did not engage in this dialogue. It is certainly important for employers to respect any privacy issues that an employee may have with respect to his or her family obligations, but at the same time, if there is an issue that has arisen which an employer is aware, it should engage the employee in a respectful dialogue to determine what, if any, steps can be taken in order to assist the employee in dealing with the issues.

What is also noteworthy from this decision is the distinction that the Tribunal made between making a choice to care for an elderly adult and being required to care for an elderly adult. While there are choices involved as to how a parent cares for a child, there can be no debate that the parent is required to care for a child. It will be interesting to see whether the courts and tribunals will adopt the same perspective when dealing with issues arising from caring for an elderly patient. If this decision is any indication, such is likely to be the case.

Michelle Black
Halifax, NS

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