A. INTRODUCTION
With Canada’s aging population, the care of aging parents
or relatives has become an important societal issue. Because the care of aging
relatives may require absence from the workplace, elder care responsibilities
are also becoming an employment issue, with important human rights implications
for employers, including charities and not-for-profit organizations. The
recent decision of the Ontario Human Rights Tribunal (the “Tribunal”), Devaney
v. ZRV Holdings Limited, 2012 HRTO 1590, confirmed that an employer’s
failure to reasonably accommodate an employee’s elder care responsibilities may
result in a finding of a unlawful discrimination on the basis of family
status. This Charity Law Bulletin discusses this important decision and
analyzes how it may affect Ontario employers.
B. THE FACTS
As a result of his termination resulting from what his
employer perceived to be excessive absences, the employee, Francis Devaney,
launched an application against his employer for breach of the Ontario Human
Rights Code (the “Code”),
claiming that the termination of his employment constituted discrimination on
the basis of family status. Mr. Devaney worked as an
architect for ZRV Holdings Limited from 1982 until his termination in 2009. During
his employment with the firm, Mr. Devaney worked his way up the corporate
ladder, becoming an associate and project manager in 1988, then a principal in
2000. In 2007 and 2008 he was the Principal-in-Charge of a major project in
Toronto.
Beginning in 2007, Mr. Devaney’s
attendance at the office declined as he cared for his aging mother. Mr.
Devaney stated that although he never had an explicit discussion with his
employer on his family situation, his team and the firm were aware of his
responsibilities towards his ailing mother. Even though, due to his mother’s
declining health, the hours he logged in 2008 had decreased from those in 2007,
Mr. Devaney testified that he had still spent numerous hours of overtime on the
Toronto project, that he worked both from home and at the office, and did not
receive any additional compensation for his overtime.
In July 2007, Mr. Devaney was informed
that he was expected to be at the office between 8:30 and 5:00 each day. In
April 2008, Mr. Devaney was again reminded about his expected attendance at the
office and informed that his attendance would be reviewed on a monthly basis.
He was also informed that "[i]f in a given month you are absent
from the office during the hours of 8:30 am to 5:00 pm during any business day,
without the approval of one of the partners, your employment will be
immediately terminated for just cause,” and that immediate correction was expected. Several emails were then sent back
and forth between Mr. Devaney and his employer, with Mr. Devaney insisting that
he was always available to his clients and employer, and that he had never
missed any meetings.
In July and August of 2008, Mr. Devaney received further
letters from his employer stating that he was not in full attendance during a
majority of the previous months’ work days and the firm expected “immediate and
permanent correction”.
The August 2008 letter also stated that due to his personal and family problems
the firm had tolerated his absences for a long time, but they were not prepared
to do so any longer. Also, the letter stated that the firm did not believe his
excuses for his absences or that his claims to overtime were credible.
In October 2008, Mr. Devaney’s mother became entirely
incapacitated and was hospitalized. After informing his supervisor of the
situation, he was told “sorry to hear about your Mother. However, as I said
before, work at home does not count – only work in the office”.
In December 2008, Mr. Devaney’s mother was placed into a
long-term care facility. Mr. Devaney informed his supervisor of the change in
situation before the Christmas break. On January 9, 2009, Mr. Devaney was
terminated for cause because of excessive absenteeism. The partners had determined
before Christmas to terminate him, but had decided to wait until after
Christmas break to inform him of their decision. Mr. Devaney asked the firm to
give him another chance. In a letter dated January 12, 2009, the firm agreed
to employ him on contract, but that he would no longer have the title of
“Principal”. As well, he would not be paid on salary but only for the full
days in which he attended the office, and any work completed outside the office
would not be compensated. The agreement was to be reviewed after three months,
at which time the firm stated they would be prepared to extend the agreement
and provide him with the Principal designation if he did attend work as
required. Mr. Devaney declined the offer, as he felt that there was no
indication that the employer would “accommodate his caregiving
responsibilities”.
Mr. Devaney subsequently filed an application to the
Tribunal, alleging discrimination on the basis of family status. Mr. Devaney
did find new employment shortly after his termination, but continued with the
application.
C. “FAMILY STATUS” DISCRIMINATION
The Code provides all workers in Ontario
the “right to equal treatment with respect to employment without discrimination
because of family status”.
Family status is defined under the Code as “the status of being in a parent and
child relationship.”
The Code also provides the employee the right to “freedom from harassment in
the workplace by the employer or agent of the employer or by another employee” because of family
status, and “no person shall infringe or do, directly or indirectly, anything
that infringes” these rights.
Family status discrimination cases have
typically involved issues of women attempting to re-enter the workforce after a
parental leave. However, employee requests for accommodation by way of
absences or modifications to their working day due to elder came
responsibilities are becoming more common. The Devaney decision
provides some clarification as to how the Tribunal will determine whether family
status discrimination has occurred.
D. TEST FOR FAMILY STATUS DISCRIMINATION
The Tribunal reviewed the tests for
family status discrimination as earlier established by the Canadian Human
Rights Tribunal and the British Columbia Court of Appeal. However, the
Tribunal decided not to apply either of the tests set out in those cases, but
instead adopted a new test focusing on the distinction between the preferences
and needs of employees with caregiver responsibilities.
The Tribunal concluded that in order for
an applicant to make out a prima facie case of discrimination on the
basis of family status, an applicant would be required to show that his or her
employer’s attendance requirements had an adverse impact on him or her because
the absences from the office were required due to caregiver responsibilities.
Importantly, the Tribunal also noted that if the applicant was merely choosing
to provide care rather than it being a family responsibility, then the
applicant would not be able to successfully claim family status
discrimination.
The Tribunal stated at paragraph 117:
“Each case must be determined based
on its own facts and circumstances. Applying the above principles to the facts
of the case at hand, I find that, in order to make out a prima facie case of discrimination on the basis of family status, the applicant must
establish that the respondents’ attendance requirements had an adverse impact
on the applicant because of absences that were required as a result of the
applicant’s responsibilities as his mother’s primary caregiver. I say
“required” because I agree with the respondents that if it is the caregiver’s
choice, rather than family responsibilities, that preclude the caregiver from
meeting his or her employer’s attendance requirements, a prima facie case of discrimination on the basis of family status is not established: see Wight,
supra. This approach is also consistent with the well-established principle
that the Code requires the accommodation of Code-related needs,
not preferences.” [citations omitted]
After setting out the appropriate test,
the Tribunal engaged in a detailed examination of Mr. Devaney’s personal
circumstances and concluded that a high proportion of his absences were related
to providing care to his ailing mother. In conclusion, the Tribunal ruled that
the employer’s strict office attendance requirements resulted in a prima
facie case of discrimination on the basis of family status. The Tribunal
also ruled that the employer failed to demonstrate that its strict office attendance
requirements for Mr. Devaney were reasonably necessary, and it failed in its
duty to reasonably accommodate his personal circumstances. The employer had an
obligation to inquire into the caregiver responsibilities and explore what
could be done to accommodate them, which the Tribunal held was not done.
In the result, the Tribunal awarded Mr.
Devaney $15,000 in general damages for injury to his dignity, feelings and
self-respect. The Tribunal also ordered that the employer develop a Workplace
Human Rights and Accommodation Policy, and provide mandatory human
resource/accommodation training to all members of the firm who had supervisory
or human resource roles.
E. CONCLUSION
The Devaney decision represents an
important development in the laws of Ontario with respect to discrimination on
the basis of family status. For employers, including charities and non-profit
organizations, the decision illustrates the need to be aware of the duty to
accommodate employees who have various types of family responsibilities which
may affect their employment. Employers should expect to see employee requests
for accommodation relating to elder care arise more frequently as our
population ages, and be prepared to respond to such requests.