Ontario worker's family status accommodation complaint dismissed

“If [an employer] makes reasonable efforts to accommodate requests by employees for shift changes and adjustments, it can feel comfortable that the tribunal isn’t going to reassess those efforts and impose unreasonable requirements and demands to accommodate.”

So says Christopher Andree, a partner and past co-leader of the Employment, Labour and Equalities Practice Group at Gowlings in Kitchener, Ont., after the Ontario Human Rights Tribunal dismissed a worker’s family status discrimination complaint.

The worker was a residential support worker for Family Options, a provider of residential housing and support services to adults with developmental and intellectual disabilities. The worker was a single parent of a young child.

In August 2015, the worker sent an email to management with their shift availability. They said that it was difficult at times to get babysitting, but they were able to do 4 p.m. to midnight evening shifts because they could sometimes get babysitting help from family, although they were “not happy” about it and the arrangement was “not ideal.” In September 2016, Family Options assigned the worker regular shifts on Tuesdays, Wednesdays, Thursdays, and Saturdays.

In August 2017, the worker requested a permanent position at one of its locations called “Jacquie” with a dedicated schedule. Family Options gave them the position.

Shift change request

On Aug, 9, the worker requested a change their Saturday availability to 9 a.m. to 3 p.m. instead of 4 p.m. to midnight, but the service co-ordinator responded that it was “not a shift” and wasn’t possible, as the shifts went from 9 a.m. to 9 p.m. and it would be difficult to fill a split shift. On Aug. 29, the worker requested working every other Sunday but this was also denied. Afterwards, they were assigned leftover shifts after all the scheduled shifts were filled, which left them without shifts for up to two weeks at a time. According to the worker, they complained but Family Options said they wouldn’t be accommodated as the worker wasn’t willing to commit to a schedule, but they were “welcome to pick up needs in September and apply for a full-time line giving a month in advance to attempt to work you into the schedule.”

On Oct. 19, Family Options demanded that the worker work from 7 a.m. to 3 p.m. and, according to the worker, said that their job would be in danger if she refused. The worker asked for a start time of 8 a.m. due to her childcare needs, but this was refused.

The same day, the worker was offered a position at another location called “Proudfoot” that involved working Thursdays and Fridays from 9 a.m. to 9 p.m. and Saturdays from 7 a.m. to 3 p.m., while she could continue to work 8 a.m. to 4 p.m. on Mondays and Wednesdays. The worker said that this would violate her family status needs, but Family Options told them to agree in writing or face the prospect of no shifts. The worker ended up giving away all the Saturday shifts to other employees.

The worker alleged that Family Options continued to deny their shift requests. On Nov. 14, Family Options sent them a letter of reprimand, but it was leaked to more than 230 of the sender’s contacts – the employer claimed that the email account was hacked. Two days later, it emailed the worker to confirm that it would no longer be scheduling them for shifts due to a failure to provide a Safe Management Group certificate – a qualification for support workers – asking for more details and to meet. It turned out that the certificate had been sent to a different manager and Family Options mistakenly believed it hadn’t been submitted. The worker didn’t respond to the email.

The worker felt that, at this point, the workplace had become “discriminatory and toxic,” which forced them to resign on Nov. 16. On Dec. 7, they submitted a medical noted asking Family Options to excuse her from work until Feb. 22, 2018, due to a “medical problem.” However, the worker never returned to work because she felt that the workplace was toxic.

Family status discrimination

The worker filed a human rights complaint on Aug. 8, 2018, alleging discrimination in employment based on family status and a reprisal. They claimed that they attempted to enforce their human rights by requesting shifts compatible with their childcare needs, but Family Options failed to accommodate them. They also said that Family Options reprised against them when it stopped giving them shifts, sent the email about certification, and circulated the reprimand letter to the sender’s contacts.

The tribunal found that the worker established a prima facie case of discrimination, as their family status was a protected characteristic under the Ontario Human Rights Code, they suffered an adverse impact by losing shifts and income, and their protected characteristic was at times a factor in them not working.

Noting that the one-year limitation period meant that only the incidents from August 2017 onward could be considered, the tribunal found that the service co-ordinator’s denial of 9-to-3 shifts on Saturdays wasn’t discrimination. The worker didn’t request the shift change as accommodation and didn’t mention childcare concerns at the time, said the tribunal.

The tribunal also found that some of the worker’s requests for shift changes were for preference and not need, noting that the worker could work 4 p.m. to midnight, although they were “not ideal.” However, Family Options made changes where possible and gave the worker certain positions she requested.

The tribunal determined that Family Options attempted to provide the worker with the shifts they preferred as much as possible within its scheduling challenges, both before and after the worker raised family status needs. However, the duty to accommodate is a collaborative process, and the worker sometimes said she couldn’t work the shifts for her requested positions and asked for more changes, said the tribunal, adding that the worker wasn’t always responsive to communications and Family Options wasn’t required to create shifts that didn’t exist or split shifts to accommodate them.

Accommodation not perfect

“The very nature of accommodation is that it’s sometimes inconvenient and inefficient, but where the employer has taken reasonable steps to try to accommodate the worker, it can feel comfortable that it's not going to end up on the on the wrong end of an analysis like this,” says Andree.

 “The tribunal was explicit that not all of [the worker’s] requests were related to her childcare needs, some of them were preferences, and that’s a difficult situation for employers to manage where they have an employee whom they value - they obviously valued her because they kept trying to make it work, but [the worker] just would not accept anything short of what they perceived to be their perfect accommodation.”

“At no point did it look like the employer took the attitude that it was inconvenient and it had done enough,” he adds. “The employer was openly communicating, making efforts, demonstrating that it was trying to accommodate, proposing different shifts - and when the worker pushed too far, they finally said, ‘We’re not going to create a new shift for you.’”

The tribunal also noted that Family Options served a vulnerable population and consistency of staff and shifts was important. The employer’s attempts to accommodate the worker within its scheduling limits was reasonable, the tribunal said.

“The tribunal never got to the undue hardship analysis because the employer provided reasons for not being able to accommodate that demonstrated it wasn't discriminatory,” says Andree. “It was difficult in their circumstances - this is an employer that's providing a positive contribution to society, not a for-profit business that’s making decisions based solely upon what’s most efficient and most profitable.”

As for the allegation of reprisal, there was no evidence of an action or threat against the worker, the tribunal found. The certification email was because of a misunderstanding and there was no evidence that the reprimand email distribution was “anything other than the result of a computer virus,” said the tribunal, adding that any loss of shifts was due to the worker’s own actions in refusing shifts or requesting changes that couldn’t be made.

The worker’s complaint was dismissed.

Andree notes that the employer appeared to do a good job of documenting its efforts and communications with the worker, which helped its cause.

“If you're making efforts, if you're doing things, if you're responding to the employee, you need to document it,” he says. “Have documents in your file of the conversations, communications, and the other efforts that that have been made, contemporaneous with the events, because documents don't forget, they stay accurate.”

See Aguele v. Family Options Inc., 2024 HRTO 991.