Written by Daniel Standing LL.B., Editor, published by First Reference

The Rolling Stones’ 1969 song “You Can’t Always Get What You Want” nicely highlights the difference between a preference and a requirement. This distinction also plays a critical role in the outcome of a family status discrimination claim in which a municipal employee’s request for altered hours arose out of and was ultimately defeated by choices she made.

In his decision, 2022 CanLII 51865, Ontario labour arbitrator Brian Sheehan traces the evolution of family status jurisprudence, and concludes that while an employee’s self-accommodation efforts are relevant, they are not a distinct step in the analysis of a prima facie discrimination claim.

Key facts

The employee at the centre of the case worked in the subsidized housing field, assessing applicants’ eligibility. In May 2015, she told her employer that she needed to finish her workday a half hour earlier so that she could be home when the bus dropped her children off. In her community, busing was not free; the employee explained that her father-in-law paid for the children’s busing as a surprise gift to the family, knowing of their financial difficulties.

For a few months, the employer accommodated the employee’s request, but it told her that a longer arrangement would require her to submit paperwork. After much back and forth between the parties over inconsistencies in the information and the employer’s repeated attempts to find out if she had explored all reasonable alternative childcare options, the employer eventually denied her request, leading to the grievance.

The decision

The arbitrator begins by discussing the three-part legal test for proving a prima facie case of discrimination based on family status. Like with any other ground of discrimination, the complainant must prove three things to get their case off the ground: (1) that they have a protected characteristic; (2) that they experienced an adverse impact; and (3) the characteristic was a factor in the adverse impact.

The decision shows how there was some controversy around how the three-part test applies in “family status” cases, owing to a decision of the Federal Court of Appeal, Johnstone. There, the court suggested that a prima facie case would only be made out where the employee “has sought out reasonable alternative child-care arrangements unsuccessfully and remains unable to fulfill his or her parental obligations.”

That statement arguably imported into the prima facie analysis a distinct fourth factor of self-accommodation, raising the bar beyond what complainants must prove in other types of discrimination cases.

Subsequent cases in Alberta have expressly rejected this approach. Rather, as reiterated in one Court of Queen’s Bench decision, the search for accommodation is “a multi-party inquiry,” involving the union, employee and employer. By focusing too much on the employee’s search for other workable arrangements, employers risk converting this collaborative inquiry into a one-sided investigation that could have a chilling effect both on removing workplace barriers and on employees filing discrimination claims.

The arbitrator set out how the law requires, as part of the prima facie analysis, an assessment of the rule’s impact on the employee, which might include a consideration of the other supports that are available to the employee. Additionally, the arbitrator cited authority for the idea that an employee’s choices can also be factored into the analysis, since choices can have significant impacts. This means that while a complainant does not have to prove, as a fourth prima facie factor, that he or she exhausted all alternatives, it does mean that a discrimination claim would be weakened by the presence of readily available reasonable alternatives.

Applying these principles to the facts, the arbitrator concluded that “the child-care issues for which the grievor sought accommodation were primarily related to a personal or familial choice as opposed to a need.” This was because the decision to bus the children home was a choice among various options. The evidence showed that there was after-school care available at the school. This would have allowed either the grievor or her husband to pick up the children after work. Based on this, the grievor’s “need” for accommodation was found to be directly linked to the decision to bus the children.

It “strained credibility,” the arbitrator said, to assert, as the employee did, that the decision to bus the children was set in stone. Even if it was the father-in-law who paid the cost, it was still a family choice to follow that option. Additionally, he found that there was a “marked lack of corroborating evidence” to support some of the grievor’s claims about her inability to pay for child care. The arbitrator commented that working families sometimes have to make sacrifices to pay for childcare coverage, an “onerous and taxing reality” that parents face. While the grievor was not obligated to “turn over every stone” to find a solution, it was the grievor’s view that her request should have been granted because it was not a “big ask.” Her viewpoint reflected a family choice which, according to the arbitrator, was factually insufficient to establish prima facie discrimination.

In dismissing the claim, the arbitrator had some pointed words for the employer, too. He said that it was troubling how the employer had the employee provide her supervisor with embarrassing evidence about her financial and family affairs, which appeared to contradict the employer’s policies stating that accommodation requests are to be treated with dignity and respecting privacy. Therefore, although there was no substantive breach of the Human Rights Code, an award of $1,000 in damages was awarded in recognition of the need to respect privacy in these situations.

Takeaways

Employers might be tempted to extract as much information as they can about their employee’s attempts to find alternate arrangements before granting a “family status” accommodation request. A measured approach appears to be called for, as too much probing about whether every stone was turned over will amount to adding a fourth criterion to the three-part test. It is not as though questions about the employee’s efforts are meaningless, however. If a reasonable solution goes untouched, leaving the accommodation request to be pursued based on what amounts to the employee’s preference, then the employee probably stands a good chance of failing to establish a prima facie case of discrimination.

By their very nature, family status complaints may require an employee to reveal intimate details about their personal lives. For that reason, it is important to follow established protocols which may require the involvement of an intermediary such as a member of an occupational health team or human resources personnel to shield the employee from having to disclose confidential material directly to the supervisor. If that is not possible or called for by policy, as it was in this case, then, as always, treating the employee with dignity and respect is the best approach.