A recent decision by the Human Rights Tribunal of Ontario (the “Tribunal”) illustrates that employers must not unilaterally revoke reasonable accommodations provided to employees without justification, and that doing so can result in substantial damage awards against employers.
In Kovintharajah v Paragon Linen and Laundry Services [Kovintharajah], the Tribunal found that an employer had violated the Human Rights Code [Code] by unilaterally revoking an employee’s family status accommodations based on a new zero-tolerance scheduling policy. As a result, the Tribunal awarded the applicant with $50,000 in damages–one of the largest damage awards for family status discrimination.
The applicant was an employee of the respondent company, a commercial laundry facility. The applicant and his spouse were the primary caregivers of their three young children and the applicant’s elderly parents-in-law, who had significant health and mobility issues (collectively, the “Dependents”). As a result, the applicant or his spouse were required to be at home to care for their Dependents at all times.
In 2016, the applicant’s wife obtained a job where she worked from 3:00 pm to 11:00 pm. At this time, the applicant regularly worked from 8:00 am to 4:00 pm. The applicant requested to change his hours of work to ensure that he could care for his children and parents-in-law while his spouse was at work. The respondent approved the applicant’s request and permitted him to work from 6:30 am to 2:30 pm.
In 2017, the respondent began experiencing financial difficulties and took steps to address what it perceived to be business inefficiencies. The respondent hired a new manager, who enforced a new scheduling policy which imposed common start and finish times for all employees for each shift. As a result, the applicant’s accommodations were revoked suddenly and without notice.
The applicant advised the new manager of his accommodation needs and that his spouse had requested to change her own working hours, but that her schedule could not be changed for months. Meanwhile, the applicant continued to leave work at 2:30 pm. The respondent issued verbal and written warnings to the applicant in rapid succession, and then suspended him without pay for five days. Upon his return from the suspension, the applicant’s employment was terminated for cause for violating the respondent’s scheduling policy.
Following his termination, the respondent contacted the applicant to urge him to return to work, but it did not inform him that it would provide him with any accommodations.
As a result, the applicant filed an application with the Tribunal, alleging that the respondent had discriminated against him on the basis of family status, contrary to the Code.
The Tribunal found that the respondent had discriminated against the applicant by failing to engage in the accommodation process.
The Tribunal was clear that the determination as to whether a party has met its duty to accommodate family status-related needs involves the same considerations as other grounds under the Code. Both parties must engage in the accommodation process—the employee seeking accommodation must provide sufficient information and act in a cooperative manner, and the employer must take appropriate steps to assess the employee’s Code-related needs and accommodate such needs to the point of undue hardship.
In this case, the Tribunal found that the applicant had taken appropriate steps to engage in the accommodation process by advising the new manager of his family status obligations and investigating possible solutions, such as having his spouse change her shift. Conversely, the respondent had failed to engage in the process. While the respondent was entitled to change its business operations to address inefficiencies, it failed to address the impact to the applicant’s Code-related needs. The respondent did so by unilaterally revoking the applicant’s long-term accommodation while expecting the applicant to make significant changes to his family care arrangements “in a matter of days”, and immediately disciplining him and then terminating his employment as a result.
The Tribunal held that the post-termination communication between the applicant and respondent could not be considered an accommodation. Although the Tribunal accepted that “there may be circumstances where a post-termination offer is a relevant factor to consider”, it found that the respondent had simply asked the applicant to come back to work, without offering him any specific accommodations.
Accordingly, the Tribunal awarded the applicant nearly $50,000, including $20,000 in general damages and nearly $30,000 in lost wages. This award is among the highest amounts provided to an applicant in a family status discrimination case.
Takeaways for Employers
Kovintharajah illustrates the potentially costly consequences of failing to accommodate an employee’s family status-related needs. As the COVID-19 pandemic continues to impact employers’ workplace operations, and as more employees begin to work from home alongside family members requiring care, employers must ensure that any workplace policies they implement give due consideration to employees’ accommodation needs.
Further, employers should not unilaterally revoke an employee’s existing accommodations where those accommodations do not constitute undue hardship, and should not insist upon a “one-size-fits-all” approach to the accommodation process. Rather, employers must treat the accommodation process as a “dialogue” and assess each accommodation request on a case-by-case basis.
As always, our team is ready to assist you with any accommodation issues that your business or organization may be facing.
This blog is provided as an information service and summary of workplace legal issues.
This information is not intended as legal advice.