Employers in Ontario must accommodate employees based on their family status. This means that employers must make reasonable efforts to accommodate if an employee cannot work certain shifts or requires modified working hours due to their responsibilities in caring for children or other family members. However, this obligation is not absolute. It is limited by the “undue hardship” principle—a high threshold that employers must meet to justify why they cannot accommodate an employee.

What Is the Duty to Accommodate?

The duty to accommodate requires that employers adjust work schedules, tasks, or other employment conditions so employees can meet family obligations. This duty continues until it reaches the point of undue hardship, which involves considering factors such as cost, health, safety, and the impact on the organization’s operations.

However, undue hardship is not the only limitation of this duty. Courts and tribunals have clarified that employees are not entitled to “perfect accommodations” but rather to those that are reasonable under the circumstances. This distinction means accommodations must address human rights needs rather than personal preferences and be balanced against the business’ operational requirements.

The Case of Aguele v. Family Options Inc.

The recent decision of the Human Rights Tribunal of Ontario (“HRTO”) in Aguele v. Family Options Inc., 2024 HRTO 991 (“Aguele”) is illustrative of how the duty to accommodate based on family status is applied in practice. In this case, the employee, a single mother, faced difficulties in securing childcare for her six-year-old child during late evenings and weekends. The employer did not accommodate with the shift schedule she asked for and reduced the overall number of shifts she was scheduled for. So, she quit her job and filed an application with the HRTO, alleging discrimination based on family status and reprisal by her employer. The employee claimed that the employer’s refusal to modify her shifts to her requests and its subsequent reduction of her shifts amounted to constructive dismissal.

The HRTO found that the employer had met its duty to accommodate. It highlighted that many employee requests for shift changes were based on preference, not necessity. For instance, the employee admitted that she could work shifts from 4:00 p.m. to midnight but found them “not ideal” and was “not happy” doing so. This indicated that her accommodation requests were not grounded in a genuine need related to family status.

The HRTO emphasized that employees “are not entitled to perfect accommodation, but rather to accommodation that is reasonable in the circumstances.” Interestingly, what is considered reasonable in the circumstances also depends on the nature of the employer’s business. In Aguele, the employer is a provider of residential housing and support services to adults with developmental and intellectual disabilities; as it serves a highly vulnerable population, and due to the importance of consistency, the employer “usually schedules staff to work in only one home at a time and requires them to be available to work regularly, with most or all schedules including at least some weekends or evening shifts.” As a result, some of the shifts or changes requested by the employee were simply not feasible, given the nature of the employer’s service, their clients’ needs, and their funding model.

Key Takeaways from Aguele

1. Reasonable, Not Perfect, Accommodations: The HRTO reiterated that employees are not entitled to a “perfect” solution but rather a reasonable accommodation based on their specific needs. In this case, the employer’s inability to meet every shift change request did not breach its duty to accommodate.
2. Nature of the Employer’s Business: The context of the employer’s business is important in determining what constitutes reasonable accommodation. In Aguele, the employer served a highly vulnerable population, and the need for consistency in staff scheduling was critical. This operational necessity justified the employer’s scheduling approach and limited flexibility in making changes.
3. Cooperative Process: Accommodation is a two-way street, requiring both parties to cooperate. The HRTO observed that the employee must provide sufficient information to enable the employer to understand the nature of their family status needs. On the other hand, where an employee has not expressly made their accommodation needs known, there nonetheless may be a duty on the employer to inquire further in circumstances in which there is reason to believe that the employee is having difficulty, because of personal characteristics protected by the Human Rights Code.

Lessons for Employees

The Aguele decision highlights the nuanced nature of the duty to accommodate family status. While employers must accommodate up to the point of undue hardship, they are not required to provide solutions that meet an employee’s every preference. Employees who misunderstand this distinction may make a wrong choice; as seen in Aguele, the employee quit her job only to get her case dismissed.

Employees should seek professional guidance before making important decisions based on accommodation issues to understand their rights and obligations better.

The Aguele decision reminds us that accommodation is a cooperative duty involving both parties. Effective communication, reasonable expectations, and a willingness to find practical solutions are vital to achieving successful outcomes for employers and employees. Employees should not forget that they need to do their part, or they may fall out of the scope of protection of the law.