Author: Stacey Staios - Articling Student
Edited By: Ryan Carson

Under the Ontario Human Rights Code, childcare and family obligations are a covered ground for discrimination. This ground is called family status and is defined as being in a parent-child relationship. Within the workplace, this means that a working arrangement or policy may have an unintended effect of discrimination on the employee’s childcare obligations.

To make a successful claim under the family status ground, the employee must prove that the workplace policy does in fact adversely affect their childcare responsibilities. In order to meet this standard, the employee must establish that the child is under their legal care, to which being a parent or guardian will prove this. In addition, the employee must also show a reasonable effort to make alternative childcare arrangements. This may include but is not limited to, arranging for daycare, or having a relative or spouse care for the child during the required hours of work. If the employee can show that such arrangements are not possible, the employer has a duty to accommodate the employee to the point of undue hardship. In this case, undue hardship may include implementing a flexible schedule to accommodate the employee’s childcare obligations.

Although this protected ground has received relatively little attention or analysis, there are many prevalent issues and concerns that exist today. There is often a lack of awareness among employers due to the fact that issues relating to family status are viewed as personal problems as opposed to human rights concerns.

In the case of Misetich v Value Village Stores Inc., which was a case before The Human Rights Tribunal of Ontario (HRTO), the Ontario Human Right Commission (OHRC) intervened. This case involved a discrimination claim on the basis of family status.¹ The HRTO in Misetich agreed with the OHRC’s submission that the current test, which requires applicants to demonstrate that their caregiving obligations engage a ‘legal responsibility’ imposes an unduly onerous burden on employees.² In this case, the HRTO’s decision reiterated that there is only one test for discrimination, which does not change depending on the ground that the claim is being made under.

The ground of family status has been part of the Ontario Human Rights Code since 1982 and affords every person the right to be free from discrimination on this basis.³ The takeaway here for both employers and employees is that the best approach to follow when considering a family status accommodation is for both parties to work together to assess the accommodation request and come to a mutual agreement.

Articles written by Stacey Staios:

Social Media Policies in the Workplace
Calculating Equalization Testamentary Capacity Aggravated and Punitive Damages Leaves of Absence in Ontario Co-Parenting In The Age of a Pandemic Corollary Relief Disability Accommodation in the Workplace
Estate Planning: A How To Guide Should You Consider A Cohabitation Agreement? What Is Wrongful Dismissal?

Disclaimer

The content on this web site is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this web site are advised to seek specific legal advice by contacting members of Carson Law, Carson IP, or their own legal counsel regarding any specific legal issues. Carson Law does not warrant or guarantee the quality, accuracy or completeness of any information on this web site. The articles published on this web site are current as of their original date of publication, but should not be relied upon as accurate, timely or fit for any particular purpose.

References

¹ Ontario Human Rights Commission ‘Summary: Misetich v Value Village- Discrimination on the basis of family status
² Ibid, note 1
³ Ontario Human Rights Commission ‘Policy and Guidelines on Discrimination Because of Family Status’ 2007