In Kovintharajah v Paragon Linen & Laundry Services Inc., 2021 HRTO 98 ("Paragon Linen") the Human Rights Tribunal of Ontario (the "Tribunal") provided clarity on the test for family status discrimination and awarded one of the highest ever damages awards for this class of discrimination.
Requests for accommodation on the basis of family status have been on the rise for all municipal employers in response to the additional pressures on families caused by the COVID-19 pandemic. This important decision offers insight to municipal employers on how to navigate family status accommodation.
The Facts
The applicant worked as a machine operator at the respondent's commercial laundry facility. The applicant and his wife had three young children aged 6, 4 and 2, and also lived with his wife's elderly parents. The applicant's in-laws had significant health and mobility issues and were not able to care for the children for more than a few minutes at a time. As a result, either the applicant or his wife had to be at home almost all the time.
In 2016, after returning to the workforce following her last pregnancy, the applicant's wife found a job where she worked an evening shift from 3:00 p.m. to 11:00 p.m. The applicant approached the respondent and asked that he be permitted to leave work at 2:30 p.m. so he could care for the children while his wife was at work. The respondent approved the applicant's request for accommodation and allowed the applicant to work from 6:30 a.m. to 2:30 p.m.
In the summer of 2017, the respondent posted a notice stating that employees would only be permitted to leave their shifts early twice a month and with 48 hours' notice. This new policy was implemented by a new general manager with the aim of enforcing compliance with the schedule and ending the "gravy train."
The applicant believed that this new policy did not impact his existing accommodation and so he continued to leave work at 2:30 p.m. In response, the general manager imposed progressive discipline on the applicant, including a written warning and a five-day suspension. Within weeks of the new policy being implemented, the respondent terminated the applicant for cause for violating the policy.
Prior to his termination, the applicant had taken steps to cooperate with the respondent with respect to his accommodation. After his initial discipline, the applicant advised the respondent that his wife was seeking to change her work schedule so he could remain at work until 4 p.m., but that it would take a few months before this new arrangement could be put in place. For its part, the respondent made no efforts to work with the applicant on his accommodation and instead enforced zero-tolerance for violation of the scheduling policy.
Key Takeaways for Municipal Employers
Municipal employers should note that the Tribunal in Paragon Linen clarified that the test for family status discrimination in Ontario is no different than any other protected ground covered by the Ontario Human Rights Code. That is, the applicant must establish that they are a member of a protected group, that they have experienced adverse treatment, and that the ground for discrimination was a factor in the adverse treatment.
The Paragon Linen decision is also helpful in identifying what is required of the duty to accommodate in the family status context. The Tribunal found that the applicant took appropriate steps to engage in the accommodation process by advising the new general manager of his family status and investigating possible solutions, including having his wife change her shift. The respondent did not engage in the accommodation process and instead immediately imposed disciplinary measures culminating in termination. The Tribunal held that by failing to participate in the accommodation process, the employer failed in its procedural and substantive duty to accommodate the applicant's family status needs.
This decision offers an important reminder for municipal employers to meaningfully engage in the accommodation process with employees who are in these circumstances. The Tribunal has made it clear that family status obligations must be taken just as seriously as any other protected ground under the Human Rights Code.
Originally Published by Ontario Municipal Human Resources Association Newsletter.
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