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ACCOMMODATION IS
APPROPRIATE IF IT WILL RESULT
IN EQUAL OPPORTUNITY FOR
AN EMPLOYEE TO ATTAIN THE
SAME LEVEL OF PERFORMANCE,
OR TO ENJOY THE SAME
LEVEL OF BENEFITS AND
ADVANTAGES, EXPERIENCED
BY OTHER, SIMILARLY
SITUATED EMPLOYEES.
end times to an hour later on the days he had custody of his child
following his divorce. However, given that the grievor did not ad-equately
550457_TheGarda.indd 1 9/3/11 11:42:07 AM
participate in his accommodation and make reasonable
efforts to seek alternate solutions or try to “self-accommodate” (be-fore
looking to the employer), this breach was not found to be
discrimination on the basis of family status.
So, as an employer, how do you avoid this pitfall? The human
rights cases and the IBEW decision establish that after ensuring
that you have the right mindset and are responding to such a re-quest
in good faith, there are five best practices to follow to balance
employer/employee needs to avoid a finding of discrimination.
First, establish that there is a parent-child relationship and that
there may be a case of discrimination that requires accommoda-tion.
This includes responding to a request that does not use any
specific formal language or refer to an established policy or proce-dure,
as well as determining whether an employee’s “unacceptable
behaviour” is caused by a childcare or eldercare situation before
discipline is implemented. Accommodation is appropriate if it
will result in equal opportunity for an employee to attain the same
level of performance, or to enjoy the same level of benefits and ad-vantages,
experienced by other, similarly situated employees.
Second, determine if there has been differential treatment that
could amount to discrimination in the workplace. Not every care-giving/
work conflict will give rise to a duty to accommodate. It
may arise where rules, requirements, standards or factors have the
effect of disadvantaging employees with caregiving responsibilities
by imposing burdens that are not placed on other employees or
by withholding or limiting access to opportunity, benefits or ad-vantages
available to others. Consider the nature of the caregiving
responsibility versus the workplace conflict that it poses and weigh
in any other factors that may be relevant (e.g. disability, age, gen-der
and marital status). In determining whether a workplace rule,
factor or requirement significantly interferes with a caregiving re-sponsibility,
take into account whether there are adequate social
supports and services available for self-accommodation to resolve
caregiving needs without the need for workplace accommodation.
Third, provide individualized accommodation. Each employee’s
circumstances must be considered, assessed and accommodat-ed
individually and afresh. There is no set formula or “one fits all”
16 ❚ SEPTEMBER 2014 ❚ HR PROFESSIONAL
