In a welcome decision for employers, the Human Rights Tribunal of Ontario (“HRTO”) recently held that Ontario employers are only required to provide employees with reasonable accommodations for their family status needs, and not their family-status-related preferences.
In Aguele v. Family Options Inc. [Aguele], the HRTO dismissed an employee’s human rights application alleging that her former employer discriminated against her on the basis of family status by not granting her shift-change request. This is because the HRTO found that: (i) the employer made reasonable efforts to accommodate the employee’s shift change requests; (ii) many of the employee’s requests were based on her family status preferences, rather than needs, which did not need to be accommodated; and (iii) the employee failed to cooperate in the accommodation process by refusing to accept reasonable accommodation offered to her.
Background
Ms. Aguele worked as a residential support worker for Family Options Inc., which provides residential housing and support services to adults with severe developmental and intellectual disabilities.
Notably, the employer’s staffing and funding model provided for very little flexibility for overtime/excess staffing expenses, and most or all of its employees were required to work at least some evenings and weekends. This was because many of the employer’s clients required constant care/supervision and react poorly to new people and situations; also, funding was specific to each client.
Ms. Aguele often requested changes to her shifts during her employment, but when she was offered and agreed to new work schedules, she repeatedly asserted that she could not work certain shifts that she agreed to.
For example, Ms. Aguele initially requested and was permitted to switch her work location and schedule based on her preference for more day shifts, and she agreed to working a schedule which included shifts on Saturdays from 4pm to 12am. However, once the schedule was posted, Ms. Aguele then advised that she could only work from 9am to 3pm of Saturdays. She did not initially give a reason for this, but she later said it was due to her not having childcare available after midnight on Saturdays. Nonetheless, Ms. Aguele later admitted that she could get childcare after midnight on Saturdays, but that this was “not ideal” and that she was “not happy” about it. In response, the employer advised Ms. Aguele that 9am-3pm was not an existing shift, and offered to allow her to work 9am-9pm every Saturday, or 8am-4pm every Saturday and Sunday. The applicant refused these offers without giving any reasons other than that she did not like either schedule, and that she wanted to work from 9am-3pm on Saturdays.
Ms. Aguele was ultimately left off of the schedule after she refused to accept any of the shifts offered to her, and she asserted that she had been constructively dismissed in response. Ms. Augele subsequently filed a human rights application alleging that her former employer had discriminated against her based on family status by failing to provide her with reasonable accommodations, among other allegations.
The HRTO’s Decision
The HRTO ruled that the employer had not discriminated against or failed to accommodate Ms. Aguele on the basis of family status by refusing to grant her shift change requests, and it therefore dismissed her application.
In reaching this conclusion, the HRTO held that employees seeking accommodation have a duty to cooperate with their employer by providing sufficient information for the employer to understand their accommodation needs, and to accept any reasonable accommodation offered to them. Employees are not legally entitled to insist on the “preferred” or “perfect” form of accommodation, and if they refuse to accept reasonable accommodation offered to them, then their employer’s duty to accommodate is discharged. Furthermore, the HRTO held that employers are only required to provide reasonable accommodations for family-status needs up to the point of undue hardship, and they have no duty to accommodate mere preferences.
The HRTO found that many of Ms. Aguele’s scheduling requests were based on mere preferences, rather than legitimate family status needs, given that she admitted that she could obtain the childcare for these shifts but that it was “not ideal”. Regardless, the HRTO found that the employer offered Ms. Aguele reasonable accommodations consistent with both her family status needs and preferences, and that it was not required to create new split shifts for Ms. Aguele because this would amount to undue hardship in light of legitimate funding/staffing constraints. Finally, the HRTO ruled that Ms. Aguele failed to cooperate in the accommodation process by refusing the reasonable accommodations offered to her, such that the employer’s duty to accommodate her was discharged.
In the result, the HRTO ruled that Ms. Aguele had not been discriminated against, and it dismissed her human rights application in its entirety.
The Bottom Line
Aguele is a very positive decision for employers because it affirms that the duty to accommodate family status needs with flexible/modified hours has limits. In particular, employers are only legally required to accommodate actual family status needs, rather than mere preferences. Thus, an employee’s preference to not work at certain times for family-related reasons does not generally require accommodation where the employee can obtain sufficient childcare to work at those times.
Similarly, Aguele affirms that employers only need to provide reasonable accommodations up to the point of undue hardship. This means that employers may not be required to create new shifts to accommodate an employee where it is not operationally feasible—however, this depends heavily on the circumstances.
Finally, this decision confirms that employers are only required to offer employees reasonable accommodations, and that employees are not entitled to insist on receiving their preferred or “perfect” form of accommodation. Thus, employers can offer accommodations that are less operationally disruptive than what an employee is requesting, so long as the accommodation is reasonable in the circumstances.
If you have any questions regarding your duty to accommodate an employee or require assistance with navigating the accommodation process while minimizing potential liability, please do not hesitate to contact us for expert advice and guidance.
