Making sense of family status discrimination

In most provinces, family status is a protected ground under human rights legislation. A recent decision, Peternel v Custom Granite & Marble Ltd., is a good reminder about family status obligations and the factors considered by adjudicators when determining whether an employer has breached its duty to accommodate an employee. 

The employee, Tina Peternel, worked as a scheduler for Custom Granite & Marble Ltd. The position required early morning work. The employee said she was permitted to arrive at work any time before 10 a.m. due to childcare obligations. But, if the company needed her to attend work earlier, she would do so and her live-in mother would take care of the kids. The company disputed that, saying it had spoken to Peternel about her tardiness in starting after 8:30 a.m. but it had not disciplined her for it.

In December 2013, the employee took maternity leave. In January 2015, prior to her return to work, the company told the employee that she would be required to attend work by 8:30 a.m. every day. The employee told the company that her mother no longer assisted her, and that she had not secured before-school daycare for her children. She asked if she could continue her 10 a.m. start time. The company refused. The employee refused to return to work, alleging that the company discriminated against her on the basis of family status. She also alleged that the company constructively dismissed her and breached the Ontario Employment Standards Act, 2000 by changing her schedule and not putting her back on the schedule she said she had before the leave. 

What did the court decide?

The court considered both of the leading cases about family status discrimination -- the Federal Court of Appeal's decision in Johnstone v Canada (Border Services Agency), and the Human Rights Tribunal of Ontario's decision Misetich v. Value Village Stores Inc.

In Johnstone, the Court of Appeal said discrimination on the basis of family status is established when an employee demonstrates that:

1. the child is under his/her care and supervision

2. that the childcare obligation at issue engages the individual's legal responsibility for that child, as opposed to a personal choice

3. that he or she has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible

4. that the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation.

In Misetich, the tribunal required an employee to show that there is a negative impact that results in a real disadvantage to the parent/child relationship and the responsibilities that flow from that relationship, and/or to the employee's work. This test differs from Johnstone, in part, because it does not explicitly require the employee to self-accommodate. Instead, it views accommodation as a joint process between the employer and employee.

Applying both tests, the court decided that the company did not discriminate against the employee because:

• the employee did not show how placing her school-aged children in a before-school daycare would negatively impact her family needs, or how it would result in a real disadvantage to the parent/child relationship

• there were several pre-school daycare options available to the employee in her community and the hours of work requested by the company were reasonable

• the employee failed to participate in the accommodation process. She provided very little information about her childcare arrangements and needs. She hindered any efforts that could have been made by the company to accommodate those needs

• the employee was financially secure and part of a two-parent home. Her husband had a high-paying job and the couple owned income property. This meant she could share child care obligations with her husband, or afford to pay for external child care.

The court also dismissed the employee's allegation that the company failed to reinstate her to her pre-maternity position. The company was obligated to return the employee to a position that was "substantive and qualitatively the same as the one held prior to the leave," which it had done. The court also dismissed the employee's constructive dismissal claim. The requirement to attend work by 8:30 a.m. did not amount to a unilateral change to the terms and conditions of her employment. The employee was often required to attend work early.

What should employers take away?

This decision does not clarify which test – Johnstone or Misetich – applies to family status discrimination cases. But, it provides useful guidance to employers because the court shows them exactly what they must do – consider both leading tests in coming to a decision about family status accommodation cases. This will be the best approach to follow when considering family status accommodation, provided employers also work jointly with an employee to assess the request and the availability of reasonable solutions.

For more information see:

• Peternel v Custom Granite & Marble Ltd., 2018 CarswellOnt 9125 (Ont. S.C.J.).

• Johnstone v Canada (Border Services Agency), 2014 CarswellNat 1415 (F.C.A.).

• Misetich v. Value Village Stores Inc., 2016 CarswellOnt 21715 (Ont. Human Rights Trib.).

Avneet Jaswal is an associate with Fasken Martineau DuMoulin LLP in Toronto, practicing labour, employment, and human rights law. This article was reprinted with the permission of Fasken. Fasken is one of the world's leading international business law and litigation firms. You can read Fasken's weekly bulletin, "The HR Space" here.