In Aguele v. Family Options Inc., 2024 HRTO 991, the Human Rights Tribunal of Ontario (HRTO) dismissed an employee’s application alleging discrimination with respect to employment because of family status and reprisal contrary to the Human Rights Code (HRC). The HRTO establishes that an employer’s duty to accommodate an employee’s family status with shift changes is not unlimited. An employee is obligated to cooperate in the accommodation process and cannot reject an employer’s offer of accommodation that is reasonable in the circumstances if it is not their preferred accommodation.

Background

The employee was a residential support worker for the employer, a provider of residential housing and support services to adults with developmental and intellectual disabilities. The employee was a single parent to a six-year-old child. The employee did not want to work certain shifts, claiming it was difficult to obtain childcare, and requested alternate shifts as an accommodation.

Employee’s Position

The employee alleged the employer violated their HRC rights by discriminating against them based on family status, failing to accommodate them, and reprising against them by reducing their shifts after they requested accommodation.

Relevant HRC Provisions

Section 5 (1) of the HRC provides that, “Every person has a right to equal treatment with respect to employment without discrimination because of,” among other things, “family status.”

Section 8 of the HRC provides, among other things, that “Every person has a right to claim and enforce [their] rights under this Act…without reprisal or threat of reprisal for so doing.”

Section 10(1) of the HRC defines “family status” as “the status of being in a parent and child relationship.”

Relevant Legal Concepts

Prima Facie Test

An employee has the onus of establishing a prima facie case of discrimination by satisfying the following test:

• The employee has a protected characteristic under the HRC;
• The employee suffered disadvantage or adverse impact; and
• The protected characteristic was a factor in the disadvantage or adverse impact.

If, however, the employer successfully rebuts the employee’s prima facie case of discrimination by establishing, on a balance of probabilities, “a statutory defence and/or a credible non-discriminatory explanation” for their treatment of the employee, which has been called into question, the employee must then establish, on a balance of probabilities, that the employer’s explanation is “erroneous or a pretext for discrimination.”

Duty to Accommodate

The duty to accommodate “is a co-operative and collaborative process” and an employer’s failure to “take the appropriate steps in the procedural duty to accommodate” violates a right under Part 1 of the HRC.

Reprisal

The following elements must be established in a reprisal allegation:

• An action was taken against, or a threat was made to the employee;
• The alleged action or threat is related to the employee’s claim or attempt to enforce their right under the HRC; and
• The employer had an intention to retaliate for the claim or attempt to enforce the right.

HRTO’s Findings

For the reasons set out below, the HRTO found the employee failed to prove a violation of the HRC.

Discrimination and Accommodation

The HRTO found that the employee established a prima facie case of discrimination: their protected characteristic under the HRC was family status; they suffered disadvantage or adverse impact (loss of income); and their protected characteristic was a factor in the disadvantage or adverse impact (at times, family status was a factor in the employee not working).

The HRTO found, however, that the employer successfully rebutted the employee’s prima facie case of discrimination by establishing a credible, non-discriminatory explanation for the impugned treatment. Despite their responsibility to provide consistency to their highly vulnerable clients and their scheduling restraints, the employer made multiple offers of reasonable accommodation to the employee; however, the employee was unwilling to commit to a schedule.

Moreover, the HRTO determined that many of the employee’s requests for shift changes were “because of preference and not need”:

…a picture emerges of an applicant who was not willing to co-operate with their employer’s attempts to accommodate both the applicant’s preferences and the applicant’s Code-protected family status needs. It appears that the employer attempted to provide, as much as the scheduling challenges of the respondent’s service allowed, the applicant with the shifts they preferred, both before and after the applicant’s family status needs were raised by the applicant.

Although the HRTO accepted that at some point the employee made their family status needs known and requested certain scheduling changes as an accommodation, it emphasized:

…the duty to accommodate is not unlimited…The applicant requested shifts that did not exist or would require the respondent to split shifts. I accept the respondent’s evidence that these changes were not feasible given the nature of the service they provide and the needs of their clients. Employees are not entitled to perfect accommodation, but rather to accommodation that is reasonable in the circumstances. [Emphasis added]

The HRTO referred to judicial precedent that highlighted:

• The importance of considering the complainant’s conduct in determining whether the duty to accommodate has been fulfilled;
• That the employer is best positioned to determine how the complainant can be accommodated without unduly interfering with the business’ operations; 
• When an employer has initiated a proposal that is reasonable and would, if implemented, fulfil the duty to accommodate, the complainant has a duty to accept it.
• If a reasonable proposal is turned down, the employer’s duty is discharged.

Applying these principles, the HRTO concluded:

…the respondent did their “part” by repeatedly accepting the applicant’s requests to transfer to other positions, and made good faith efforts to determine how the applicant could be accommodated “without undue interference in the operation of the employer’s business” of housing vulnerable disabled clients. However, the applicant did not do their “part” in that they would request and accept positions with shifts for which they would then not work. I find that the applicant did not work collaboratively with the respondent in crafting an accommodation. Rather, the applicant expected a perfect solution, and effectively turned down proposed accommodations that were reasonable in the circumstances. Therefore, I find that the respondent’s duty was discharged.

Reprisal

The HRTO found that the employee failed to establish they experienced reprisal, or that the employer intentionally reprised against the employee. Rather, the HRTO referred to the employer’s attempts to accommodate the employee both before and after their family status needs were raised and emphasized that any loss of work was due either to the employee’s actions or the misunderstanding surrounding their certification. An email from the employer’s Service Coordinator to the employee indicated that the employee would not be scheduled for shifts due to an expired certification as a residential support worker could not work without it. In fact, the employee possessed an up-to-date certificate, but it had been submitted to another manager.

The HRTO also found there was no evidence that an action against or threat to the employee by the employer occurred. The HRTO stated that even if it accepted that such an action or threat occurred, there was no evidence that it was related to the employee’s claim or attempt to enforce a right under the HRC. Finally, the HRTO also found that there was no evidence the employer intended to retaliate for the claim or attempt to enforce the right.

Bottom Line for Employers

Employers should be aware that when they are asked by an employee for alternative shifts as an accommodation for their family status, they do not have an unlimited duty to accommodate the employee. Upon receiving such a request, employers should not feel obliged to offer the employee perfect accommodation; they are required only to offer the employee accommodation that is reasonable in the circumstances, and the employee has a duty to accept it. Employers should not lose sight of the fact that the duty to accommodate “is a co-operative and collaborative process” and that employees must “take the appropriate steps in the procedural duty to accommodate.” Accordingly, if an employee rejects a reasonable proposal, the employer’s duty to accommodate the employee is discharged.