Accommodation is a two-way street: Lessons for employers from Aguele v. Family Options Inc.

The duty to accommodate is a key principle of human rights law in Canada. It ensures that individuals facing barriers related to protected grounds under the Human Rights Code receive the support they need to access equal opportunities.

In Aguele v. Family Options Inc.^[1], the Human Rights Tribunal of Ontario (Tribunal) addressed critical issues concerning the duty to accommodate under the Ontario Human Rights Code^[2], particularly in relation to family status accommodation in employment. The Tribunal’s decision in Aguele adds to the long line of decisions that emphasize that the duty to accommodate is a shared responsibility. Employers who engage in a genuine, collaborative process and offer reasonable accommodations within operational constraints will have met their legal duty to accommodate under the Code.

The facts of Aguele v. Family Options Inc.

The applicant, Vera Aguele, was employed as a residential support worker by Family Options Inc. (Family Options), a provider of 24/7 residential housing and support services for adults with developmental and intellectual disabilities. Ms. Aguele, a single parent, requested shift changes to accommodate her childcare needs, specifically seeking to avoid late evening and weekend shifts. She alleged that her employer, Family Options, failed to accommodate her family status needs and retaliated against her by reducing her shifts, ultimately leading to her constructive dismissal.

Legal framework — Duty to accommodate

Under the Code, "family status" is defined as "the status of being in a parent and child relationship." Employers have a legal obligation to accommodate employees’ needs based on family status, provided such accommodation does not impose undue hardship on the employer. The duty to accommodate is a collaborative process requiring active participation from both the employer and the employee in good faith to find reasonable solutions.

Tribunal findings

The Tribunal applied the established legal test for discrimination, which requires the applicant to demonstrate:

1. they have a characteristic protected under the Code;
2. they have suffered a disadvantage or adverse impact from an employment requirement or rule; and
3. the protected characteristic was a factor in the disadvantage or adverse impact.

In this case, despite Ms. Aguele successfully demonstrating that she had a protected characteristic (family status) and that she experienced a disadvantage (loss of income) due to her childcare responsibilities, the Tribunal dismissed her application because she failed to engage in the accommodation process.

The Tribunal found that Family Options had made genuine and reasonable efforts to accommodate Ms. Aguele’s childcare needs.

• Initially, when Ms. Aguele requested a transfer to a different home with more day shifts, Family Options agreed but informed her that the new position required working Saturdays from 4:00 p.m. to 12:00 a.m.
• Ms. Aguele subsequently stated she could not work past midnight and requested shifts from 9:00 a.m. to 3:00 p.m. on Saturdays. In response, Family Options indicated that Ms. Aguele’s requested shifts did not exist, and offered alternative schedules, including working from 9:00 a.m. to 9:00 p.m. every Saturday or every other weekend from 8:00 a.m. to 4:00 p.m. on both Saturday and Sunday.
• Ms. Aguele refused the options provided by Family Options, stating that they were not ideal and that she only wanted to work her preferred shifts. Family Options explained that it could not provide Ms. Aguele with her preferred schedule as: (1) such shifts did not exist; and (2) it would require splitting shifts, which would disrupt the scheduling and make it difficult to fill the remaining hours.

The proposals provided by Family Options were deemed reasonable given its operational constraints and the necessity to maintain consistent care for its clients. The Tribunal noted that Ms. Aguele’s refusal to accept reasonable accommodations and insistence on her preferred schedule did not align with the collaborative spirit required in the accommodation process.

For these reasons, the Tribunal held that Family Options’ duty to accommodate had been discharged.

Key takeaways for employers

• Accommodation process is a two-way street: The duty to accommodate is a collaborative process requiring active participation from both the employer and the employee in good faith to find reasonable solutions. Employees must clearly communicate their needs and remain flexible in exploring workable solutions. Employers must make genuine efforts to accommodate those needs up to the point of undue hardship, by proposing reasonable accommodation. An effective accommodation process hinges on open dialogue and cooperation; neither party can simply stand back and expect the other to carry the burden alone. If the employees do not “do their part” and instead turn down proposed accommodations that are reasonable in the circumstances, the employer will be released from their duty to accommodate.
• Operational considerations: Employers have the right to balance the employee’s accommodation needs with their operational requirements. Employers are not required to create new positions or shifts that do not exist to accommodate the employee.
• Preference vs. need: A clear distinction exists between an employee's genuine need for accommodation based on a Code-protected characteristic and personal preferences. Employees are not entitled to perfect or preferred accommodation, but rather to accommodation that is reasonable in the circumstances.

For further information on accommodation and related human rights issues, or if you have any other questions, please contact a member of the Employment, Labour & Equalities Group.