Family Status Discrimination Ontario
Reasonable Accommodation of Childcare Responsibilities as a Human Right in the Workplace.
Under the Ontario Human Rights Code, childcare obligations are covered under family status as a prohibited ground of discrimination. Within the workplace, this means that a policy or working arrangement (i.e. hours or change in scheduling) may have an unintended effect of discrimination upon an employee’s childcare obligations. There are standards that must be met prior to establishing that an employer must accommodate an employee’s childcare needs. Here are those standards in general terms:
The employee must first prove that the workplace policy in question does in fact adversely affect their childcare responsibilities. To meet this standard, the employee must establish that the child is under their legal care and that they are responsible for the child’s care. Being a parent or legal guardian undoubtedly meets this criterion. There must also be a reasonable effort to make alternative childcare arrangements by the employee. This may include arranging for daycare, a relative or spouse to care for the child during required hours of work, and so forth. If such arrangements are not possible, the employer then has the duty to provide ‘reasonable accommodation’ to the point of ‘undue hardship’.
‘Undue hardship’ is an elusive standard that many times requires the advice of a legal expert. This does require, however, for an employer to make a meaningful effort to accommodate childcare needs. This may include a flexible scheduling arrangement, for instance, that would allow the employee to fulfil their work obligations and meet their childcare duties. If accommodation can be made without hurting the business, then the employer unquestionably must provide accommodation.
For example, suppose an employee had always worked a shift of 8am – 4pm. Eventually, this employee is required to work from 12pm – 8pm. The employee puts forth an effort to arrange for relatives to care for the child during the evening, however, this is unsustainable. There are also no daycare options available during this time. If the employer can provide the employee a scheduling alternative to accommodate childcare needs without hurting the business, then the employer here must accommodate. When the business may suffer is where the standard becomes more uncertain. For instance, how much hardship is the employer required to sustain in making accommodations? If you are faced with such a situation, please seek the assistance of a legal expert.
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