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Manager allows remote-work accommodation of pregnant employee in contravention of employer policy
Accommodation E-lert, posted on July 16, 2026 within the category "Accommodating pregnancy".
An employee alleged discrimination based on disability and sex (pregnancy). She claimed the employer failed to accommodate her pregnancy-related disability and discriminated against her during a departmental restructuring while she was on maternity leave. The Tribunal dismissed the disability claim, finding that the employer fulfilled its duty to accommodate by providing the requested remote-work arrangement. It did find discrimination based on sex in the restructuring that led to the elimination of her position while on maternity leave.
Legal citation
Kartos v. Toronto District School Board, 2026 HRTO 802 May 27, 2026 (Tribunal member, Ghanam)
Facts
The employee alleged discrimination based on disability and sex, specifically pregnancy.
She was hired as a project manager and initially had a positive working relationship with her manager until requiring time off for a miscarriage and related surgery.
Upon returning to work and becoming pregnant, she found a deterioration in their professional relationship.
The employee disclosed her subsequent pregnancy to her manager and requested intermittent remote-work accommodation due to severe pregnancy-related illness.
Her doctor provided medical documentation supporting this need. The remote days were allowed.
While the employee's manager agreed to an informal arrangement, he advised that if Human Resources were involved, they would require her to use sick days when ill and not permit remote work.
The manager subsequently expressed concerns about the frequency of remote-work usage. The applicant alleged that her manager became more distant in his communication and imposed unreasonable task deadlines while she was working remotely.
The employer maintained there was no disability discrimination as it accommodated the employer with remote work as requested during her difficult pregnancy.
Analysis¹
The tribunal member referred to the test for discrimination set out by the Supreme Court in Moore.²
[35] In that case, the Courts held that to establish discrimination, an applicant must prove:
a. They are members of a group protected by the Code³;
b. They were subjected to adverse treatment; and
c. The Code ground was a factor in the alleged adverse treatment.
The member noted that the pregnancy-related illness experienced by the employer as a disability was not challenged. The issue became whether there was an adverse impact where disability was a factor:
[38] On this point, I find I must concur with the respondent. The applicant confirmed under cross-examination that she did, in fact, work remotely on all days where that accommodation was requested. I accept the applicant's evidence that the Board may have had an unwritten policy that did not permit accommodation of disability needs by remote work. Rather, it required employees to use their allocated sick time. However, the senior manager did not deny her requests to do remote work, providing reasonable accommodation of the applicant's disability during the period in question.
In coming to this assessment, the member stated:
[40] Given that, I find that the applicant has not demonstrated, as per part (b) of the test noted above [Moore], that the respondent's actions rose to the level of adverse treatment. As such, the applicant has not established, on a balance of probabilities, that the respondent discriminated against her on the basis of disability in the context of employment.
With this finding, the member turned to the other issues in this case and found there was sex discrimination, based on the restructuring during the employee's maternity leave that led to her position being eliminated, along with a finding of reprisal for being terminated at the conclusion of her leave.
Takeaways for Unions
Reasonable accommodation might also include consideration as to how that accommodation is applied. Here the employee found the granting of days stressful, and the accommodation was actually informal. It should be noted that this case also stands for its finding of outright sex discrimination where accommodation was not applied or considered.
Takeaways for Employers
The assessment of the duty to accommodate usually follows a finding of adverse treatment and, hence, prima facie discrimination. But here, the accommodation was such that adverse treatment was not established. Note that the result may have been different if, as the tribunal member notes in the decision, rather than an informal arrangement through the manager, the School Board's policy denying remote work in such circumstances had been applied.
¹ The focus in this summary is with respect to the claim of discrimination on the grounds of disability based on failure in the employer's duty to accommodate. The subsequent finding of sex discrimination and reprisal through termination did not trigger an accommodation defence.
² Moore v. British Columbia (Education), 2012 SCC 61.
³ Ontario Human Rights Code, R.S,O, 1990, c. H-19.
Tip Of The Day
While arbitrators will certainly pay attention to medical letters and the recommendations of health professionals, they will recognize the difference between a suggestion and a mandatory direction coming from a physician. In an accommodation matter, employers have the discretion whether to accept a medical suggestion, but they are generally required to follow the mandatory direction from a health professional, unless they are willing to seek a second medical opinion to challenge the direction.
