Employers’ duty to accommodate family status when scheduling shifts is not unlimited

Employers’ duty to accommodate family status when scheduling shifts is not unlimited

Family status is a protected ground under the Ontario Human Rights Code[1] (the “Code”) and employers have an obligation to provide reasonable accommodation in the circumstances. In its recent decision, Aguele v. Family Options Inc.,[2] the Human Rights Tribunal of Ontario confirmed that the duty for employers to accommodate family status as it relates to scheduling is not unlimited.

In Aguele, the applicant worked as a residential support worker for a provider of residential housing and support services to adults with developmental and intellectual disabilities. The applicant did not want to work certain shifts and cited the difficulty in obtaining childcare as the reason. She requested alternate shifts as an accommodation for her family status as the single parent of a 6-year-old child. The applicant claimed she was denied the shifts she requested and alleged discrimination on the basis of family status, failure to accommodate and reprisal.

The applicant established a prima facie case of discrimination as she had a protected characteristic under the Code (family status); suffered disadvantage or adverse impact (loss of income); and the protected characteristic was a factor in the disadvantage or adverse impact (family status was at times a factor in the applicant not working). However, the Tribunal found that on a balance of probabilities, the employer had a credible non-discriminatory explanation for the impugned treatment. Shifts were offered to the applicant, however, she was not willing to co-operate with the employer’s attempts to accommodate both her preferences and her protected family status needs.

The evidence established that the employer at all times attempted to work with the applicant to achieve a schedule that accommodated the applicant, whether it was for her childcare needs or simply for her stated preferences. They repeatedly accepted the applicant’s requests to transfer to other positions and made good faith efforts to determine how to accommodate the applicant without undue interference to its business operations. The applicant, on the other hand, would request and accept positions with shifts for which she would then not work and would request additional changes that were not possible or gave away the shifts.

The Tribunal accepted that at some point the applicant made her family status needs known and requested certain scheduling changes as an accommodation. However, the Tribunal explained that the duty to accommodate is not unlimited. The applicant requested shifts that did not exist or would require the employer to split shifts. These changes were not feasible given the nature of the employer’s business and the needs of their clients. The Tribunal also noted that many of the applicant’s requests for changes to her shifts appeared to have been based on preference rather than need.

The Tribunal emphasized that the duty to accommodate is a co-operative and collaborative process[3], and that employees are not entitled to perfect accommodation, but rather to accommodation that is reasonable in the circumstances.[4] The employer fulfilled their part in the accommodation process, however, the applicant did not when she failed to accept reasonable accommodations. As a result, her application was dismissed.

Aguele confirms that the duty for employers to accommodate family status is discharged when employees turn down proposed accommodations that are reasonable in the circumstances. 

[1] R.S.O. 1990, c. H. 19

[2] 2024 HRTO 991

[3] See Chappell v. Securitas Canada Limited, 2012 HRTO 874.

[4] See Supreme Court of Canada’s decision in Central Okanagan School District No. 23 v Renaud, [1992] 2 SCR 970.

By Sally Kim

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