Court Cases & Orders

Does Employer Discriminate Against Woman Who Lacked Child-Care?

pregnant woman
Written by Russell Alexander / (905) 655-6335

Does Employer Discriminate Against Woman Who Lacked Child-Care?

“Family status” is one of the prohibited grounds of workplace discrimination under the Ontario Human Rights Code.  It is defined as “the status of being in a parent and child relationship.”

The scope of an employer’s duty to accommodate an employee’s “family status” was the focus of a recent case called Peternel v. Custom Granite & Marble Ltd. where the court heard a human rights complaint by a woman who was returning to her job from having taken maternity leave.  She claimed the employer had discriminated against her by requiring her to report to work each day at 8:30 a.m., even though she had no morning child-care for two of her three children.  She claimed this was tantamount to a failure to accommodate her “family status” under human rights legislation, and asked for six months’ pay and $20,000 in punitive damages.

The woman had started to work for the small company – which made and installed granite counters — in 2010, taking on the role of scheduler.  An important part of her job was to respond to early-morning calls and attend morning meetings, and the woman acknowledged that an 8:30 a.m. start-time was one of the stipulations in her job description.  Still, during the years leading up to the birth of the woman’s third child, the employer had accommodated her child-related needs to some extent, for example by giving her a cellphone that allowed her to make work early-morning work-related calls from her home.

But in 2015, while the woman was still on maternity leave, the employer advised that upon her return she would be required to consistently report to work at 8:30 a.m., due to changes in the workplace. The employer gave her time to try to find child-care, but she was unable to do so in advance of her return date.

The employer did offer her an alternative job, at comparable pay, that would allow her to start work mid-morning, rather than at 8:30.   However, the woman did not even respond to that offer; instead, she chose not to return to work when her maternity leave came to an end.

In light of these facts, and after pointing out some issues with the woman’s credibility, the court dismissed her discrimination claim.   The court concluded that she had essentially frustrated the employer’s efforts to accommodate her.

First, the court noted contradictions in the woman’s dealings with the employer and some discrepancies in her evidence to the court.  For example, she had told the employer that she could not come into work by 8:30 a.m. because she needed to take her children to the school bus; however, the court noted the woman’s mother lived with them and was often called upon to watch the children including taking early mornings when the woman’s job absolutely required it.

After shining light on further discrepancies, the court noted:

Taken as a whole, the evidence leads me to conclude that [the employer] Custom was a good employer to the plaintiff. Custom allowed the plaintiff flexibility with her hours and showed her sympathy and accommodation following earlier miscarriages and throughout her last pregnancy. In return, Custom expected and understood that the plaintiff would be able to come to work in the early morning when required and be willing and able to field early morning telephone calls from home or en route to work.

When it came time to accommodate her third child, the employer was ill-positioned since the woman had not provided key information concerning her need for accommodation, and not given details about her efforts to secure childcare.

By law, all employees have a positive duty to cooperate with an employer as part of the human rights accommodation process, which includes providing information concerning family-related needs and working with the employer to identify possible solutions.  In this case, the woman had simply failed to provide the employer with the information it needed to accommodate her.

For the full text of the decision, see:

Peternel v. Custom Granite & Marble Ltd., 2018 

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About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.