Case In Point
Human Rights Tribunal of Ontario Confirms Childcare Preferences Do Not Trump Employer’s Scheduling Needs
Date: July 25, 2024
In Aguele v. Family Options Inc., the Human Rights Tribunal of Ontario (HRTO) confirmed that the duty to accommodate in the context of a family status accommodation scheduling request is not unlimited. An employee has an obligation to accept accommodation that is reasonable in the circumstances, failing which an employer’s accommodation obligation is discharged. This decision reinforces the importance of distinguishing a family status “need” protected by the Human Rights Code (Code) from a mere “preference.” It also provides insight on factors related to scheduling requests which may constitute undue interference in the operation of an employer’s business.
The respondent was a provider of residential housing and support services to adults with developmental and intellectual disabilities. The HRTO accepted that most or all staff schedules included at least some weekend or evening shifts, and that the respondent’s staffing model and funding offered extremely little flexibility for overtime and other excess staffing expenses.
The applicant, a residential support worker, alleged discrimination on the basis of family status, failure to accommodate and reprisal. The applicant’s evidence was that she requested alternate shifts in August 2017 as an accommodation for her family status as the single parent of a six-year-old child. She alleged that the respondent failed to accommodate her request and further retaliated by subsequently reducing her shifts. Ultimately, the applicant claimed the workplace became discriminatory and toxic which forced her to resign.
The applicant was hired in 2015 and had a history of requesting schedule changes. However, the primary request considered by the HRTO involved an August 2017 email exchange with the respondent. The applicant was denied a requested change in the timing of a Saturday shift because the requested shift, in the respondent’s submission, was not an existing shift and not operationally feasible.
Prior to making this request, the applicant had requested and been permitted to switch her work location and schedule based on a preference for more day shifts. She was specifically told, at the time she requested the switch, that the new schedule would entail working Saturdays from 4:00 p.m. to 12:00 a.m. Despite this, shortly after the schedule was posted for her new location, the applicant advised she could work only from 9:00 a.m. to 3:00 p.m. on Saturdays. The applicant did not initially give any reason for the request.
On August 9, 2017, the respondent advised that 9:00 a.m. to 3:00 p.m. on Saturdays was not an existing shift and that it would be difficult to get coverage for the remaining hours. The applicant in response stated she did not have childcare available after midnight and thus could not work Saturday 4:00 p.m. to 12:00 a.m. The applicant reiterated this statement a few days later, at which time she proposed to work either every Saturday from 9:00 a.m. to 3:00 p.m., or every other Saturday from 9:00 a.m. to 9:00 p.m. She ended her email by stating she would appreciate being accommodated.
The respondent’s evidence was that they did not recognize this as a request for accommodation under the Code, but instead understood this phrase to be used in the colloquial sense of “I hope you can work with me,” (i.e., an expression of preference).
In an attempt to work with the applicant, the respondent offered her a choice of working 9:00 a.m. to 9:00 p.m. every (and not every other) Saturday, or every other weekend 8:00 a.m. to 4:00 p.m. on both Saturday and Sunday. The applicant refused both options and did not give any reason other than she did not like either schedule and wanted to work only the weekend shift identified. Because the applicant would not agree to any of the shifts offered, the respondent could not put the applicant on the schedule for September and instead had the applicant pick up available shifts individually.
The applicant later agreed in writing to a new schedule at a new location, which included work on Saturday from 7:00 a.m. to 3:00 p.m. Shortly after accepting this position, however, the applicant submitted vacation and shift-change requests to get rid of her Saturday shifts.
In the HRTO’s view, the respondent’s August 9, 2017 email exchange with the applicant did not amount to an incident of discrimination, failure to accommodate or reprisal. The applicant’s initial email did not request the shift change as an accommodation and did not mention any childcare concerns. Further, the applicant had accepted the 4:00 p.m. to 12:00 a.m. shift when granted the first transfer to a new location and did not provide any evidence of a change of circumstances between the time they accepted the position and the short time later when they requested this shift change.
The HRTO also accepted the respondent’s position that the applicant requested shifts that either did not exist (and would have to be created) or would require the respondent to split shifts—both of which were not feasible and constituted undue interference on the respondent’s operations. Further, the HRTO observed that many of the applicant’s request for shift changes appeared to have been because of preference and not need. On cross-examination, the applicant admitted that she was able to work Saturdays 4:00 p.m. to 12:00 a.m. but that this schedule was not “ideal.”
Given the nature of the service provided by the respondent and its vulnerable clients’ needs for consistency in staff schedules, the HRTO found the respondent’s efforts to accommodate the applicant following August 9, 2017 to be reasonable and devoid of reprisal.
Regardless of if or when the respondent became aware of the shift-change requests as being Code-protected accommodation requests, the HRTO ultimately concluded that the evidence demonstrated the respondent at all times attempted to work with the applicant to achieve a schedule that accommodated her.
Key Takeaways
This decision confirms the applicability of well-known accommodation principles to the ground of family status:
- The duty to accommodate is a co-operative and collaborative process.
- Employees are not entitled to a perfect or ideal accommodation but one which is reasonable in the circumstances, and they have a duty to accept a reasonable proposal.
- A reasonable proposal, if refused, discharges an employer’s duty to accommodate.
- The employer is in the best position to determine how an employee can be accommodated without undue interference.
This decision further confirms that the nature of an employer’s business and needs of its client base are relevant factors to consider in the accommodation analysis.
For more information about this decision or how to manage family status accommodation requests in your organization, please contact your regular Hicks Morley lawyer.
The article in this client update provides general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Hicks Morley Hamilton Stewart Storie LLP and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Hicks Morley Hamilton Stewart Storie LLP. ©
