In Ontario, ‘family status’ encompasses a parent-child relationship and employers have a duty to accommodate their employees who have such responsibilities until the point of undue hardship. The parent-child relationship is interpreted broadly to include childcare obligations, which is most common, as well as caring for elderly parents (Misetich v. Value Village Stores Inc., 2016 HRTO 1229) and elderly in-laws (Kovintharajah v. Paragon Linen and Laundry Services Inc., 2021 HRTO 98).
In the recent case of Cosentino v Octapharma Canada Inc., 2024 HRTO 860, it was affirmed that by refusing to accommodate an employee who was the sole caregiver for an elderly parent, the employer discriminated against them on the basis of family status.
What Happened?
In 2020, Cosentino’s mother was diagnosed with cancer and in August of that year, she started chemotherapy and radiation treatment. Cosentino was the primary caretaker for her mother who was considered a ‘vulnerable person’ because her age and illness made her particularly susceptible to COVID-19. She required a constant caregiver who did not regularly interact with the public. Also because of the pandemic, the family could not find a service suitable to take care of her.
Cosentino was a sale representative who had largely been field-based or home-based since the beginning of her employment in 2011, with occasional appearances at the head office in Toronto. Her request for accommodation was approved initially, and her work continued to be completed daily and she remained in contact with her General Manager (GM).
After a month, she was put on a Performance Improvement Plan, citing that the role was field-based, not home-based, and she was required to come into the office. This was not the case even pre-pandemic. This made social distancing impossible with other people in the office, putting Cosentino’s mother at risk. It also would require her to commute back and forth from downtown Toronto to Woodbridge at lease twice a day to fulfill her duties.
Cosentino decided to continue working from home as a form of self-accommodation. During this time, her GM ceased all communication with her, despite the Performance Improvement Plan which made communication and team work a priority. Five weeks later, she was dismissed without cause.
What did the Human Rights Tribunal Say?
The Tribunal found that the actions of the employer amounted to discrimination and the necessary accommodation would not have amounted to undue hardship.
In requiring Consentino to come into the head office, the company unilaterally changed her working conditions which challenged her caregiving responsibilities. The employer failed to engage in the accommodation process by not inquiring fully about the accommodation needs of their employee. Cosentino was forced to self-accommodate by expressly refusing her manager’s instruction which ultimately led to her termination.
The Tribunal’s second finding was that the employer reprised and/or threatened reprisal against the employee for asserting their rights, contrary to section 8 of the Human Rights Code.
In particular, the adjudicator found that stopping all communication with Cosentino and unilaterally changing her work location were reprisals for her requested accommodation. She also found that the Company’s poor sales performance that year may have been a factor in the termination decision, the decision was at least partially influenced by Cosentino’s lack of attendance at the office. Cosentino’s request for accommodation, which was not adequately met, and her subsequent self-accommodation, were the cause of the attendance issues, and therefore termination for this reason amounted to reprisal against the request for family status accommodation.
What Damages was the Plaintiff Awarded?
For the above reasons, the adjudicator made the following awards for a total amount of $104,806.88:
- $25,000 in general damages for injury to her dignity, feelings and self-respect;
- $7,577.07 for loss of salary;
- $6,621.66 for loss of allowances and benefits;
- $51,996.15 for loss of a three-year profit-sharing bonus; and
- $13,612 for loss of annual performance bonus.
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Authors: Jonquille Pak and Ava Clarke
Date: July 12, 2024
