Weilers LLP

Accommodation in Scheduling and Family Status

Accommodation in Scheduling and Family Status

July 26, 2021

By Brian Babcock

The duty to accommodate exists to make equality in employment truly equal. It is a violation of the Ontario Human Rights Code to fail to take proper steps to assess an employee’s Code-related needs.

A common issue in workplaces that receives little attention in cases is the difficulty that some employees experience due to family status. Both workers and employers may simply be unaware that “family status”, an enumerated ground under the Code, is broadly defined, to include the need for the worker to vary their schedule due to responsibilities as a family caregiver. There does not need to be an intent to discriminate, just discrimination in fact.

Ontario’s Human Rights Tribunal focused on this issue in Kovintharajah v. Paragon Linen and Laundry Services Inc.. The employer operated a commercial laundry service. The worker was a caregiver to his wife’s elderly parents and his youngest child, in a situation where he and his wife needed to arrange their schedules so that someone was home with the parents at almost all times. He had been granted an accommodation by the employer permitting him to finish work at 2:30pm to allow him to meet his child care responsibilities. This allowed his wife to have a job starting at 3:00 pm.

In fall 2017, the employer revoked this accommodation, and required the worker to stay until 4:00pm, the standard end of shift for day shift workers The worker continued to leave at 2:30pm, and was suspended then terminated from his employment. The termination was done publicly in front of co-workers.

The employer took the position that due to financial changes, it had to revoke all flexibility and accommodations due to hardship. It also claimed to have offered the worker a change to the afternoon shift to accommodate him. The Tribunal, on conflicting evidence, found that this offer was not communicated to the worker.

Undue hardship is a defence to a failure to accommodate, so if successful in this argument, the termination was justified.

The worker’s need to be at home was found to be a need not a preference.

The employer also argued that no duty to accommodate arose, because, it said, the rule requiring all workers to stay until 4:00 was a universal rule that did not discriminate against a “group of persons” protected by the Code. This argument was rejected. The neutral rule adversely impacted any worker who had previously relied on the prior flexibility.

The prior reliance was relevant because it established that the employer was aware of the need for accommodation.

This awareness engaged the procedural duty to accommodate, a co-operative duty, which required that the employer take steps to investigate the possibility of accommodation. Instead, it imposed discipline followed by termination.

Failing to follow this procedural duty in turn led to a failure to fulfill the substantive duty to accommodate.

The worker was awarded lost wages plus $20,000.00 as compensation for injury to dignity, feelings, and self-respect. The public termination was a factor in this award.

For employers, this is a reminder of the extent of the duty to accommodate, and that it may apply to any aspect of the employment relationship, including scheduling. Because the code is remedial legislation, the Tribunal will frequently lean in favour of workers. This is consistent with the very high onus on employers to accommodate illustrated by the undue hardship standard for refusing to accommodate, but impacts other decisions as well. In addition, efforts to accommodate need to be well documented, and the behaviour or attitude shown will impact results.

Employers must be diligent and proactive in applying the Code.

For workers, this case is a reminder that the Tribunal will intervene to protect their rights, but that workers must also act reasonably – the duty to accommodate is a co-operative adventure.