“The trend in human rights cases, where we’re going to see a lot more cases now, is discrimination based on family status,” says leading employment law
yer Nicole Byres.
“Those are often those cases in which an employee has a shift change or some type of shift schedule which has a material effect on their ability to care for their children or parents in an eldercare situation,” she told HRM.
Byres’ assertion is supported by a recent decision from the Northwest Territories Human Rights Commission which focussed on the accommodation of one employee’s specific childcare needs.
The employee in the case – referred to only as A.B – had worked with the City of Yellowknife on a part-time basis as a cashier-receptionist for four years, when eventually took on a full-time booking clerk position, she raised concerns about childcare.
The long-term employee had a child with significant needs related to autism – needs which were not easily supported in the community.
At the time, she requested and received both the summer break and December school break off from work (through a combination of annual leave and unpaid leave) to care for her son while he was out of school.
However, the following year, the City of Yellowknife suggested she work evenings and weekends rather than take the extensive time off – when A.B indicated the arrangement would leave her stressed and exhausted, the HR officer advised the employee to provide a medical note.
A.B subsequently provided letters from two physicians who provided details about her son’s disability and explained the need for routine and proximity to “people he is comfortable with and who are capable of managing his needs.”
The city was also provided with a letter from the Northwest Territories Disabilities Council, confirming that it could not support the child in its summer camps because of his complex needs and behavioural risks.
However, bosses deemed the letters insufficient as they did not come from the A.B’s own doctor or establish a personal medical need – she eventually resigned after using the last of her annual leave.
The Human Rights Commission found that the City of Yellowknife did not accommodate A.B to the point of undue hardship, given the size and capacity of the City as an organization – since she was only requesting leave without pay from mid-July to the end of August and the summer was a slow period for bookings.
It also found that therewere several casual cashiers who could have been trained to fulfil the role of the bookings clerk, adding that the city hires summer students and could have easily assigned other employees to enter bookings.
“This decision serves as a reminder for employers that the duty to accommodate, to the point of undue hardship, involves a consideration of the entire circumstances of a particular case,” says Cox & Palmer associate Ashley Savinov.
“In this case, it should have been clear to the employer – based on the letters from two physicians and the Northwest Territories Disabilities Council – that the level of support that was required and available for the employee's child during the school year was relatively non-existent during the summer months,” she continued.
“While it may not be the outcome in all cases, in this case, the employer had the resources to organize its workforce so that other employees could have taken on the employee's position while she was on leave.”
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Employers are being warned of their extensive obligation to accommodate workers on the basis of family status as the protected category is becoming increasingly common in Human Rights Cases across Canada.