Discrimination Based on Family Status - The Decision in Sathiyamoorthy Kovintharajah v. Paragon Linen and Laundry Services Inc.
**Written by Adele Zhang, Summer Student at Lee Workplace Law
Employees have a right to equal treatment in the workplace without discrimination based on a ground protected by the Ontario Human Rights Code (the "Code"). To that end, employers have a duty to accommodate employees where they are adversely impacted by workplace policies or procedures because of their membership to a Code-protected group.
The issue of accommodation in the workplace was recently considered by the Human Rights Tribunal of Ontario (the "HRTO") in Sathiyamoorthy Kovintharajah v. Paragon Linen and Laundry Services Inc., 2021 HRTO 98. In its decision, the HRTO reaffirmed the legal framework for assessing discrimination claims on the basis of family status and in its decision awarded one of the highest damage awards to date for a family status case.
Facts
In May 2016, the employee, Sathiyamoorthy Kovintharajah, requested to change his work schedule from 8:00am - 4:00pm to 6:30am - 2:30pm due to childcare responsibilities. His employer granted this family-status accommodation, and this work arrangement continued for a year without any issues.
In October 2017, a new manager, Shane Hitchcock, began working for the employer. On October 2, 2017, Mr. Hitchcock put up a general notice to all employees stating that employees would no longer be permitted to leave shifts early. However, Mr. Kovintharajah was not directly told that his accommodated hours had been revoked and, therefore, continued to leave at 2:30 pm.
On October 17, 2017, Mr. Hitchcock posted a second notice mandating that employees only leave work early twice per month. Mr. Kovintharajah was informed this meant he had to stay until 4:00pm. At this point, Mr. Kovintharajah went to speak with Mr. Hitchcock and explained that he needed to leave at 2:30 to pick up his children and that any adjustments to the accommodated schedule would take a few months to change as he needed to coordinate with his wife's work. Mr. Hitchcock refused to accommodate him.
On October 18, 2017, Mr. Kovintharajah was given a 5-day suspension without pay for leaving work at 2:30pm and finally, on October 31, 2017, Mr. Kovintharajah's employment was terminated.
Mr. Kovintharajah claimed that by failing to accommodate his family-status based needs the employer discriminated against him contrary to the Code.
Analysis
The first step in assessing discrimination claims on the basis of family status is to assess the credibility of the claim. Testing credibility requires courts to evaluate the testimonies of the key players for their consistency and probability in the context of the case. The primary question here is whether a practical and informed person would readily accept the testimony.
The second step is for the employee to provide evidence that the requested accommodation was not just a preference but rather based on necessity.
The third step is for the court to evaluate whether a duty to accommodate arose on the facts of the case and whether there was discrimination under the Code. A duty to accommodate arises whenever a workplace policy or process adversely impacts an employee because of their membership to a Code-protected group. This is the case even if the workplace policy is implemented for a neutral purpose. For example, in this case, requiring all employees to work from 8:00 am to 4:00 pm was not rooted in a discriminatory intent. However, this policy had an adverse impact on Mr. Korvintharajah, who relied on his accommodation due to his family circumstance.
Outcome
The HRTO ruled in favour of Mr. Korvintharajah, finding that he had been discriminated against on the basis of family status. The employer was ordered to pay $29,724.39 in compensation for lost wages and $20,000 in compensation for injury to dignity, feelings, and self-respect.
Takeaways
In determining whether family status discrimination has occurred in the workplace, the HRTO considers both the objective and the impact of workplace policies. Even where a policy has been implemented for legitimate purposes, the HRTO may determine that the policy has a discriminatory affect on the employees.
The duty to accommodate is a procedural and substantive process involving both employers and employees.
Employers have a duty to accommodate on grounds of family status as set out in the Code. Therefore, an employer must engage in reasonable and cooperative effort in exploring workplace accommodations, otherwise they may be found in violation of the Code. If an employer immediately dismisses the employee instead of participating in the accommodation process, the termination may be found to be discriminatory.
On the flipside, the employee has a duty to communicate sufficient information about their needs to commence the collaborative process of workplace accommodation. Should employment be terminated because of a request for family status accommodation, the employee should speak with an employment lawyer.
