The Scope of the Ground of “Family Status”

In accordance with the principle that a broad and purposive approach must be taken to the interpretation of human rights protections, tribunals and courts have taken an expansive approach to the interpretation of the ground of family status, which is currently defined as the “status of being in a parent and child relationship”.

The ground of family status protects non-biological parent and child relationships, such as families formed through adoption, step-parent relationships, foster families, and non-biological gay and lesbian parents.

An Ontario Board of Inquiry has set out the principle that the definition of family status covers all those who are in a parent and child “type” of relationship.

The ground of family status may therefore embrace a range of circumstances where there are no blood or adoptive ties, but relationships of care, responsibility and commitment that resemble a parent-child relationship.

The Commission has taken the position that the ground of family status includes care relationships between adult children and those who stand in parental relationship to them. For example, individuals providing eldercare for aging parents are protected from discrimination under the ground of family status.

 

Identifying Needs Related to Family Status

In most cases, accommodation needs related to family status will be connected to caregiving responsibilities. Human rights tribunals have found that the ground of family status must be interpreted to include the caregiving needs associated with the parent-child relationship.

 

In most circumstances where there is a significant conflict between an important caregiving responsibility and an institutional rule, requirement, standard or factor, a duty to accommodate will arise.

In considering whether a duty to accommodate has arisen, the following considerations may be of assistance:

1. The nature of the caregiving responsibility, and of the conflict between that responsibility and the organization’s rules, requirements, standards, processes or other factors
   This factor must be assessed on a case-by-case basis. The more substantial the caregiving obligation at stake, and the more serious the interference of that rule, requirement or factor, the more likely it is that a duty to accommodate will arise. 

2. The systemic barriers faced by caregivers, including intersectional impacts based on disability, age, gender, sexual orientation, race and race-related grounds, and marital status.
   In assessing requests for accommodation based on family status, organizations should consider whether systemic barriers may exist within their own organization, including the representation of persons with significant caregiving responsibilities, the organizational culture, and the inclusiveness of its policies, procedures and decision-making practices. Specific systemic barriers facing caregivers in employment, housing and services are discussed in the relevant sections.
   
3. The availability and adequacy of social supports for caregiving needs

In determining whether a rule, factor or requirement significantly interferes with a caregiving responsibility, it is important to take into account whether adequate social supports and services are available for the individual to resolve their caregiving needs without accommodation. Both the adequacy and availability of supports should be taken into account: caregivers should not be required to place their loved ones into situations of significant risk of physical, emotional or psychological harm in order to meet the needs of their employer, landlord, or service provider.

Appropriate Accommodation

Where an accommodation need related to family status has been identified, the organization must identify and implement the most appropriate accommodation, short of undue hardship. The determination of what is and is not an appropriate accommodation is a separate determination from an undue hardship analysis.

An accommodation will be considered appropriate if it will result in equal opportunity to attain the same level of performance or to enjoy the same level of benefits and privileges experienced by others, or it if is proposed or adopted for the purpose of achieving opportunity and meets the individual’s needs related to family status.

The most appropriate accommodation will be that accommodation that most promotes inclusion and full participation, and effectively addresses any systemic issues.

It is a principle of human rights law that there is no set formula for accommodation: each person’s needs are unique and must be considered afresh when an accommodation request is made. Accommodations must take into account individual situations and requirements.

Accommodations must acknowledge the practical realities of caregiving. An accommodation that is not in accordance with good caregiving practices, or that would place an undue burden on the family, will not be considered appropriate.

http://www.ohrc.on.ca/en/policy-and-guidelines-discrimination-because-family-status/vi-duty-accommodate