After Johnstone: Family Status Discrimination in Ontario

With Family Day just around the corner, many Ontarians are planning to spend some extra quality time with their loved ones this weekend. But, apart from a day off for those workers who fall under the Employment Standards Act, 2000’s protections, what rights do people with families have at work?

The Ontario Human Rights Code bans unequal treatment and harassment against workers on the basis of their “marital status” and “family status.” Until recently the law did not seem to give workers a clear idea of what this protection means. For example, while most people agreed that the law clearly bars employers from refusing to hire (or deciding to fire) someone because they have children, it was less clear how much an employer needed to accommodate a worker’s childcare obligations in the workplace.

Recent Family Status Cases
This spring, the Federal Court of Appeal decided two cases about family status. In both cases, mothers claimed that their employers had discriminated against them on the basis of their family status by refusing to provide them with schedules that would permit them to meet their childcare needs. The women worked irregular hours that changed from week to week, making it hard to coordinate childcare with their other family members and childcare providers.

In Johnstone , the Court set out the following test for determining whether a “prima facie” (“on the face of it”) claim of family status discrimination could be established in cases dealing with child care:

1. Is a child is under your supervision?

2. Is your childcare obligation based on your legal responsibilities and not your choices?

3. Have you made reasonable efforts but been unable to meet your obligations though “reasonable alternative solutions”?

4. Do your workplace rules interfere with your obligations “in a manner that is more than trivial or insubstantial”?

So far, Ontario decision makers have released only two final decisions applying Johnstone to claims of family status discrimination at work.

In Partridge v Botony Dental Corporation, a case decided by the Ontario Superior Court of Justice this year, Justice Healey dealt with a mother’s claim that she was wrongfully dismissed by her employer. When she left on her maternity leave, the plaintiff had been working as an office manager for over three years. However, when she returned to work, her employer demoted her to her former job as a dental hygienist and changed her hours, so that they conflicted with her daycare arrangements. When the plaintiff complained, her employer fired her.

The Court rejected the employer’s argument that it had a good reason for firing the plaintiff. Instead, the Court found that the plaintiff had been wrongfully dismissed after her maternity leave and that her employer had discriminated against her on the basis of family status. In this case, the plaintiff was trying to meet her legal obligation to ensure that her children were properly cared for while she was at work. In order to do so, she sent her children to daycare and sought the help of her spouse, her extended family and a neighbour. In contrast, the employer could not show that its changes to the plaintiff’s schedule were really required for the performance of the job. The Court ordered the employer to pay 12 months’ notice as well as $20,000 in human rights damages.

In a second case Janice Wing, a municipal councillor whose duties included sitting as a member of a board of directors, complained that being required to attend board meetings at 3:30pm was discriminatory because it interfered with her parental obligations. Ms. Wing could not attend the meetings at that time because she had to pick her daughter up after school and then take her to swimming lessons. In exchanges between Ms. Wing and the President of the Board, Ms. Wing suggested she might be able to bring her daughter to meetings and the President offered to permit her to attend by phone instead. The Board ultimately changed its meeting time to 4:00pm.

In this case, the Tribunal adopted the Court’s decision in Johnstone, and found that the Board had not discriminated against Ms. Wing. The Tribunal considered Ms. Wing’s allegations even though it determined that members of corporate boards were not employees so she could not have been a victim of workplace discrimination, as she claimed. Importantly, Ms. Wing chose not to put her child in after school care and did not seem to have made any efforts to find alternatives. In addition, the Tribunal found that Ms. Wing missed meetings for other reasons and that her concerns were based on a potential future conflict between her family obligations and the meetings, not an actual conflict.

Conclusions
For many working parents, unpredictable shifts and long hours are an inescapable reality. It remains to be seen whether Johnstone will cause employers to re-think the way they schedule workers and structure their businesses. The impact of these decisions will likely depend on how legal decision makers define a parent’s “obligations” as compared to their “choices” and what counts as a reasonable effort to find alternative childcare.

DECISIONS DISCUSSED:

Canada (Attorney General) v Johnstone, 2014 FCA 110 (CanLII)

Canadian National Railway Company v Seeley, 2014 FCA 111 (CanLII)

Partridge v Botony Dental Corporation, 2015 ONSC 343 (CanLII)

Wing v Niagara Falls Hydro Holding Corporation, 2014 HRTO 1472 (CanLII)

This blog is for educational and informational purposes only and does not constitute legal advice. If you would like legal advice or have questions about your particular workplace problems please contact a lawyer. Our lawyers’ information is available on our Contact Us page.

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Co-Worker Held Responsible for Workplace Sexual Assault

Workplace sexual harassment happens when your employer, an agent of your employer or a fellow employee harasses you on the basis of your sex or gender at work by engaging in a pattern of conduct that he knows or ought to know is unwelcome. Sometimes this means that a single comment or one instance of sexist behaviour, while inappropriate, won’t be considered sexual harassment. However, it is possible that a single incident, like a sexual assault, can be so serious that it amounts to sexual harassment on its own. Often, employees seek to hold their employers responsible for sexual harassment at work because it’s an employer’s responsibility to provide every worker with a safe workplace that is free from harassment and discrimination.

CK v HS, 2014

In one recent Human Rights Tribunal of Ontario case, the Tribunal held an individual liable for his sexual assault of a co-worker in the workplace but did not find that the employer had breached its obligation to “take reasonable action to address complaints of harassment or discrimination.”

In this case, the woman was a very new employee who had only recently returned to the workforce after some personal health issues. In the course of her workplace orientation, the assailant first touched the woman’s thigh and tried to touch her ribs, but she told him to stop. Shortly thereafter, his behaviour escalated. In a single incident, he revealed himself to the woman, forced her to touch him sexually and groped her. The woman was shocked and humiliated by the assault. She quit shortly after the incident and started looking for a new job, but she continued to be anxious at the prospect of working alone or with men and did not find new work for a few months. The man was convicted of sexual assault at criminal court before the human rights hearing took place.

The Tribunal called the man’s actions a “blatant and egregious sexual advance,” noting that the victim faced financial difficulties after quitting her job and, at the time of her hearing, the woman was still experiencing significant medical and psychological harm.

Nonetheless, the Tribunal dismissed the woman’s claim against her former employer. In the Tribunal’s view, the employer took reasonable action when he encouraged the woman to contact police and provided her with time-off before her resignation. The employer accepted the woman’s resignation but kept her position available for a number of months.

Instead, the Tribunal ordered the assailant to pay his victim $45,000 for “injury to dignity, feelings and self-respect” as well as $6,760 in compensation for lost wages.

DECISIONS DISCUSSED:

C.K. v. H.S., 2014 HRTO 1652 (CanLII)

C.K. v. C[…] Inc., 2014 HRTO 572 (CanLII)

This blog is for educational and informational purposes only and does not constitute legal advice. If you would like legal advice or have questions about your particular workplace problems please contact a lawyer. Our lawyers’ information is available on our Contact Us page.

COMMENTING POLICY: Comments may be subject to moderation. Commenters should refrain from using offensive or discriminatory language and from disclosing any personal or potentially privileged information.