The Duty to Accommodate Family Status (and Potentially Lifestyle Choices Too)

In an update last October (Accommodating Family Status – Needs vs. Preferences) we advised you that the Ontario Human Rights Tribunal established a new test for an employer's duty to accommodate on the basis of family status (i.e., must accommodate an employee's genuine needs but not mere preferences). All employers, but especially federally regulated employers should take note that the Federal Court recently outlined an even more liberal and broad interpretation of the duty to accommodate on the basis of family status. The Federal Court confirmed in the decision of Attorney General of Canada v. Fiona Anna Johnstone and Canadian Human Rights Commission, 2013 FC 113, that parental childcare obligations fall within the scope of family status. In doing so, the court confirmed the central question as “whether or not the employment rule in question interfered with an employee's ability to fulfill substantial parental obligations in a realistic way”. Significantly, the court rejected the line of cases (Health Sciences Assoc. of B.C. v. Campbell River and North Island Transition Society) that held there must be a “serious interference” with a substantial family duty (including parental or elder care) for the employee to prove discrimination on basis of family status. As such, this decision opens the door to requiring accommodation of employee lifestyle choices. As a result of the Johnstone decision, employers should understand that while there is still some conflicting law on the applicable standard for accommodating family status, the law is clear that requests for accommodation on the basis of family status must be treated seriously. Published on the Bennett Jones Thought Network.