September 5, 2013 By: Alison McEwen
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I am often asked by clients when their employer has a duty to accommodate their family status. The short answer is: in all aspects of employment, to the point of undue hardship, unless there is an exception set out in the Ontario Human Rights Code (“Code”).

Family Status has been a prohibited ground of discrimination in the Code since 1982, and means “the status of being in a parent and child relationship”. Discrimination on the basis of family status includes any distinction, including exclusion, restriction or preference based on family status that results in the impairment of the recognition of human rights and fundamental freedoms.

Because “family status” encompasses such a large range of issues, it can be difficult to recognize all of the ways in which discrimination can occur. Areas that are often problematic include:

  • the duty of employers to accommodate family responsibilities;
  • policies and practices that may create systemic barriers to individuals with care-giving responsibilities; and,
  • bias on the basis of family status.

Often, the negative attitudes, stereotypes or biases are not overt, and sometimes are perhaps not even intentional. When employees become parents or take on other significant care-giving responsibilities, they may find themselves shunted on to the “mommy track”, and passed over for promotions, learning opportunities, and recognition, even when they continue to work full-time and perform well. There may be an assumption that the person with family responsibilities is unable to take on bigger responsibilities. In other cases, the bias is much more overt. There may be comments about leaving early or not pulling one’s weight when time is taken for parental leave or to fulfill care-giving commitments

Employees with family responsibilities may also face greater systemic barriers. There may be patterns of behaviour, policies or practices that are part of the social or administrative structures of an organization, and which create or perpetuate a position of relative disadvantage for people with care-giving commitments. While these systems and structures may appear neutral on the surface, they have a disproportionate effect on certain employees. An example is the practice of always scheduling client meetings at dinner when many parents with small children will have childcare commitments, as opposed to at lunch, when it may be easier for employees with young children to attend.

The duty to accommodate will only arise where a prima facie case of discrimination on the basis of family status has been demonstrated. In the context of family status, accommodation is usually associated with care-giving needs. Section 11 of the Code allows an employer to demonstrate that the requirement, qualification or factor that is discriminatory is reasonable and bona fide. The employer must show that it cannot accommodate the employee without undue hardship.

Fortunately, accommodation of care-giving needs is often neither burdensome nor costly; rather, it is a matter of flexibility. Flexible working hours, working from home and careful scheduling of meetings and events can go a long way to avoiding issues with regard to family status. One of the biggest barriers to accommodation of these issues is a profound lack of awareness amongst both employers and employees regarding their rights and responsibilities under the Code.

Accordingly, one of the most important steps to take is to know your rights and obligations under the Code. If you think there may be a problem in your workplace, it may be prudent to seek a professional legal opinion. Click here to view my video on an employer’s responsibility to accommodate family status.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.

Service: Employment Law