In Aguele v Family Options Inc [Aguele], the Human Rights Tribunal of Ontario (“HRTO”) affirmed that while an employer has the duty to accommodate family status needs, the employee also has a duty to engage in the accommodation process and not simply request their preferred or “perfect” accommodation. In Aguele, the employee repeatedly requested several schedule changes and rejected different reasonable accommodations offered by the employer. Ultimately, the HRTO held the employee faced no discrimination or reprisal, having failed to engage in the accommodation process herself.
Background
The employer provides 24/7 coverage as well as residential housing and support services to adults with developmental and intellectual disabilities.
The employee, a single parent working as a residential support worker, had a history of requesting shift changes with the employer, initially providing no reason for same. At one point, the employee had accepted a transfer to work at a different location, which required her to work on Saturdays from 4:00 p.m. to 12:00 a.m. Despite understanding this requirement, the employee requested a shift change from Saturday evenings to Saturday mornings, from 9:00 a.m. to 3:00 p.m. The request was denied because the 9:00 a.m. to 3:00 p.m. shift did not exist and was not operationally feasible. In response, the employee stated she was not able to fulfil the Saturday evening shift, as she would not have babysitting after midnight.
To provide accommodation that would also meet its operational demands, the employer offered the employee the option to work from 9:00 a.m. to 9:00 p.m. every Saturday, or from 8:00 a.m. to 4:00 p.m. every other Saturday and Sunday. The employee refused the accommodation offers, citing that she did not like the proposed schedules and wished only to work the hours she proposed. Consequently, the employer could not schedule her for the next month but permitted the employee to accept available individual shifts.
The employee requested another transfer to a different location, agreeing verbally to work the hours requested for the position, which included Saturday shifts from 7:00 a.m. to 3:00 p.m. However, after being transferred, the employee immediately submitted vacation and shift-exchange requests to give away all her Saturday shifts for the remainder of the year.
The employee filed a human rights application for discrimination based on family status due to the denial of her shift change request, as well as reprisal for being removed from the schedule and having a private disciplinary email shared.
HRTO Decision
The HRTO found no discrimination or reprisal, ultimately dismissing the employee’s human rights application.
No Discrimination or Failure to Accommodate
The HRTO held the employee’s requests for different shifts were based on her wants rather than any human-right-related needs, and therefore there was no discrimination or failure to accommodate on the employer’s part. The HRTO noted the employee’s preference-based language in communicating with the employer and at the hearing, which included statements that the schedule was not “ideal” for her and that she was “not happy”. While she did make her childcare challenges known to the employer at a later point, she did not clearly connect her scheduling preferences to her family status needs. The employee rejected the employer’s many accommodation options without outlining why her childcare obligations prevented her from working the various employer-proposed schedules.
The HRTO also found the employee’s schedule requests were not operationally feasible, given the support needs of the highly vulnerable residents, who required consistency. The employer also operates on a funding model which is directly connected to each client, and therefore balancing client safety with funding constraints and logistical challenges is complex.
In the end, the employer provided as many accommodation options as its operational needs permitted, both before and after the employee raised her childcare needs; however, the employee did not work collaboratively to craft an accommodation that worked. Instead, the evidence demonstrated the employee continued to request shift changes despite having agreed to work certain schedules.
No Reprisal
The HRTO found no reprisal against the employee, given there was no evidence of intentional retaliation. The employer had a reasonable and credible explanation as to why the employee was not scheduled for certain shifts. The HRTO noted that any loss of work was due to the employee’s own actions.
Further, the HRTO accepted that the disciplinary email was shared inadvertently due to a computer virus, which was an event outside of the employer’s control rather than an intentional reprisal.
Takeaways
Aguele reminds employers of important accommodation principles and best practices, including the following:
- Accommodation is a Collaborative Process: Employers and employees must consult with one another to find meaningful accommodation that will work. Employers should note that while employees should clearly communicate their accommodation needs, employers may still be required to inquire further where an employee has not expressly made their accommodation needs known.
- Reasonable Accommodations: The employer’s duty to accommodate only extends to reasonable accommodations—employees are not entitled to their preferred or “perfect” accommodation. If an employee refuses accommodations that are reasonable in the circumstances, the employer has discharged its accommodation obligation.
- Document Accommodation Efforts: Employers should keep written records of their accommodation efforts to assist them in keeping track of the employee’s accommodation history and to protect them from liability.
This blog is provided as an information service and summary of workplace legal issues.
This information is not intended as legal advice.