Yet Another Turn in the Saga of “Family Status” Discrimination

January 2017

Article by: Gavin Marshall

Nothing worries clients more than to be told that the subject matter for which they require advice is “interesting”. Interesting is often a synonym for expensive. If that is the case, the issue of child and elder care in the context of human rights is likely to generate more expense in the coming year and beyond. The risks are made more common with an aging population and a workforce that requires busy people to juggle family commitments with work. In Misetich v. Value Village Stores Inc., 2016 HRTO 1229, the Human Rights Tribunal of Ontario recently issued the latest decision in the ongoing saga of family status discrimination.

The law regarding family status discrimination has been unsettled for some time. There have been diverging “tests” set out at the Federal level and in other jurisdictions. In British Columbia, “Campbell River” requires a caregiver to identify a “serious interference” with a family or caregiving obligation that is “substantial.”   In Johnstone, the Federal Court of Appeal established the following structure to establish family status discrimination:

1.That the child (or parent) is under their care and supervision;

2. That the caregiving duty engages a legal responsibility for that child (or parent), not a personal choice;

3. That the complainant tried in vain to find alternative solutions for caregiving (i.e. s/he made “self-accommodation” efforts); and

4. That a workplace rule interferes with the caregiving requirement in a substantial way.

In September, 2016, these family status discrimination cases and the appropriate test to be applied in Ontario were discussed by the Human Rights Tribunal of Ontario (HRTO) in Misetich v. Value Village Stores Inc.

The Misetich decision

Ms. Misetich usually worked straight day shifts Monday to Friday, but was offered variable shifts and hours to accommodate a repetitive strain injury. Ms. Misetich declined the offer because the hours interfered with her ability to care for her elderly mother. In response, the employer wanted proof of that legal obligation. After she could not provide such proof, the employer terminated her employment.

While the HRTO ultimately dismissed the application due to the failure of the employee to provide sufficient evidence to establish her eldercare obligations, its discussion of the appropriate test to applied to family status cases is significant. Specifically, the Tribunal held that the test for discrimination was the same in all cases and expressly rejected the family status test set out by the Federal Court of Appeal in Johnstone, which it viewed as creating a higher standard for family status claims than cases based on other forms of discrimination.

The Tribunal’s decision reiterated that there is only one test for discrimination, and the test does not change depending on the Code ground, stating:

[52] 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 also accepted the argument that an assessment of whether a claimant had made reasonable efforts to meet family status obligations (i.e. to self-accommodate) does not belong at the prima facie discrimination stage. The HRTO stated: “I do not agree that in order to prove discrimination, an applicant must establish that he or she could not self-accommodate the adverse impact caused by a workplace rule”.

What does this mean for employers?

The Misetich decision certainly marks the opening of yet another chapter in the struggle of adjudicators to balance family needs and employers’ rights in the workplace. It is unlikely that the debate about the appropriate test will end until the Supreme Court of Canada speaks definitively.

However, the Misetich case provides a glimpse of what employers have to look forward to (or dread) in the meantime. The Tribunal ruled that the employer’s shift adjustments were not discriminatory but its decision turned on a debate about what evidence Ms. Misetich could put forward to Value Village to prove that the shifts she was asked to work really prevented her from serving dinners to her mother. Mealtimes for family members are now the stuff of human rights legal analysis. This is the kind of frustrating granular exercise that has been occupying the desks of human resources professionals in recent years in many areas of human rights law. Family status is shaping up to be no different in this respect.