BY Sheryl Smolkin, lawyer and journalist | September 20, 2012
The idea of duty to accommodate has typically arisen around parents with children. Employers have wrestled with the extent of this duty to avoid employee claims of discrimination based on family status.
There’s another duty to accommodate concern employers need to be aware of and it’s one that’s expected to grow in the coming years.
The Ontario Human Rights Tribunal recently ruled on the case of a senior architect who was fired because he frequently worked at home instead of at the office in order to care for his severely disabled mother.
The adjudicator found that the company should have accommodated his need for a flexible work arrangement and awarded him $15,000 for injury to his dignity, feelings and self-respect.
Francis Lyndon Devaney worked as an architect at Zeidler Partnership for 27 years and was a principal of the firm. In 2007 and 2008, he and his team were working primarily on the Trump International Hotel and Tower—business he brought into the company.
Devaney lived with his mother who had osteoarthritis and osteoporosis. Between the mid 1990s and 2008 her health declined and she was wheel-chair bound. Multiple fractures and surgeries meant she needed more and more care. Early in 2009, she was accepted into a long-term care facility.
In order to provide his mother with the necessary assistance in the two years before she went into full time care, Devaney was frequently late or absent from the office. However, he worked full-time hours from home using a notebook computer with VPN access and a cell phone. In addition, in 2007 and 2008 he logged a total overtime of over 1,500 hours.
He was fired in January 2009.
Zeidler Partnership said that after many warnings for his frequent absences they had just cause to fire him and denied discrimination in any form. While the company acknowledged that he referred to his care-giving responsibilities from time to time, they said he never requested formal accommodation.
After he was terminated, Devaney asked for a second chance. The company offered contract employment on a per diem basis without benefits, but only for days he actually worked in the office. The proposed contract stripped him of the title “Principal,” subject to a further review after a three-month probation period.
He did not accept the offer. He went to court instead.
The Court Case
At the hearing, colleagues working for the company and for the client testified that he got the job done whether he worked from the office or from home. In fact, four or five weeks after he was fired by Zeidler, he was hired on contract by the CEO of the developer on the Trump project to manage the project until its completion in late 2010.
After reviewing the evidence, the adjudicator found that Devaney established a case of discrimination based on family status because his termination was primarily due to absences arising out of his eldercare responsibilities which the company knew about.
He also said the company had a duty to accommodate Devaney “to the point of undue hardship” which they did not do by insisting he keep regular 8:30-5:00 hours in the office when there was no evidence that his schedule created problems for either his clients or his co-workers.
Upon termination, the company gave him 34 weeks of pay in lieu of notice. He asked for an additional 36 weeks of salary and benefits plus compensation for the impact on his dignity, feelings and self-respect of the company’s failure to accommodate his family responsibilities.
The adjudicator turned down his request for lost salary and benefits as he began employment directly with his client on the Trump project at a higher salary which lasted until November 2010.
However, taking into consideration that some of Devaney’s absences from work were for reasons other than caring for his mother, he awarded him $15,000 for the impact of the discrimination and failure to accommodate on his dignity, feelings and self-respect.
Zeidler was also ordered to develop a human rights policy addressing the need to accommodate under the human rights code and offer mandatory training to partners and staff with supervisory and/or human rights functions within 120 days.
What can advisors learn from this case? Read: Your clients need a policy on flexible work arrangements