May 16, 2017
In the era of the “sandwich generation”, many employees are balancing work with significant family obligations – caring for children, aging parents, or both. Many employers seeking to retain valued employees have been considering and implementing temporary or even permanent flexible work arrangements in an effort to assist employees in balancing their work and family responsibilities. Until recently, in our province, making such accommodations has been a purely voluntary act by employers. However, recent decisions by the BC Human Rights Tribunal suggest that the law may be changing to require employers to accommodate needs created by an employee’s “family status”.
The prohibition against discrimination in employment on the basis of family status is not new. In Section 13 of the Human Rights Code, family status has long been included as one of the prohibited grounds for discrimination in employment. The term family status is not defined in the Code, but encompasses one’s status as parent or child, among other relationships. Over the years, BC’s Human Rights Tribunal has considered numerous complaints by parents who claim that their employer (or former employer) failed to accommodate their family status, for example their daycare schedule or other childcare obligations. BC Courts and the BC Human Rights Tribunal have not generally been receptive to these complaints, holding that a complaint of family status discrimination will not succeed in the usual case of an employee experiencing a conflict between work and family obligations.
There is a recognition that many working parents have to make childcare arrangements, and the approach of our Courts and the Tribunal seems to be that making appropriate childcare arrangements is a responsibility to be borne solely by the parent, and an employer is entitled to insist on a particular work schedule, even if it conflicts with childcare obligations. The law in BC has required employees to demonstrate that there has been a “serious interference with a substantial parental or other family duty” to prove discrimination on the basis of family status. Under this test, successful complaints have been made out, for example, where an employee had a child with a disability, and medical evidence demonstrated that due to his unique needs, the child required after-school care from the parent specifically.
In applying this high threshold, BC has been out of step with the rest of the country, and judges in other provinces have criticized and expressly rejected the BC approach as too narrow and limiting. Two recent decisions by the BC Human Rights Tribunal suggest that the Tribunal is looking for ways around this high threshold, finding exceptions to the “serious interference with a substantial parental… duty” test.
In one decision the Tribunal found that an employer had discriminated against an employee who was the mother of three children on the basis of her family status when it unilaterally removed her contractually-promised flexible work schedule following her maternity leave (Brown v. PML and Wightman (No. 4), 2010 BCHRT 93). In a second decision, the Tribunal found that an employee who was a single mother had suffered discrimination on the basis of family status when the employer terminated her employment based on assumptions made about her ability to work on account of her status as a single mother (Cavanaugh v. Sea to Sky Hotel and Mohajer (No. 2), 2010 BCHRT 209). In both decisions, while not expressly rejecting the higher threshold (which the Tribunal cannot do as it is bound to follow the decision of the BC Court of Appeal in which this high threshold was set), the Tribunal undertook a creative analysis to find that in these particular cases, the “serious interference with a substantial parental duty” test did not apply.
What does this mean for employers? Prior to these developments, employers might have believed they did not have a legal obligation to accommodate employees’ childcare or family obligations, unless there was something usual or particularly demanding about the employee’s family situation. Although this is still the state of the law until the Court of Appeal reconsiders the issue, if the identified trend continues and the Tribunal continues to find creative ways around this high threshold, employers may have to be prepared to demonstrate that they have accommodated an employee’s family status to the point of undue hardship. This could include accommodation of employees who request time off to care for ailing parents, or employees who request adjustments to their work schedules around childcare arrangements.
And the trend continues.
In 2014, the Federal Court of Appeal was provided with the opportunity to review the question of what constitutes discrimination on the basis of family status in the case of Ms. Johnstone. Ms. Johnstone, a mother of two young children, was employed full-time as a Border Services Officer by the Canada Border Services Agency (CBSA). She worked rotating shifts which included weekends, days, evenings and nights. Her husband also worked for CBSA on a rotating schedule. Claiming that her shift work made it difficult for the couple to secure child care for their two children, Ms. Johnstone requested that she be moved to a fixed, full-time schedule. The employer was able to partially accommodate her request by offering her a fixed schedule on a part-time basis. However, Ms. Johnstone wished to maintain her full-time status as a Border Services Officer. Ultimately, CBSA decided that it was unable to accommodate her request, despite other alternatives suggested by the employee. Ms. Johnstone filed a claim of discrimination on the basis of family status with the Canadian Human Rights Tribunal. While the Tribunal noted that having children is a personal choice, it found that the Canadian Human Rights Act granted protection against discrimination based on such personal choices. The Tribunal found that the ground of “family status” was included to provide protection against discrimination based on the identification of one as a parent or on a familial relation and the needs and obligations that naturally flow from those relationships. The Tribunal found that rotating shift work was not a bona fide occupational requirement for the Employer and accommodating the employees request would not have caused CBSA undue hardship. On judicial review of the Tribunal’s decision, the Federal Court agreed with the determination that Ms. Johnstone was discriminated against based on family status as defined by the Tribunal. Of significance, the Federal Court noted that while the CBSA had demonstrated a willingness to accommodate other employees on a full-time schedule for religious or medical reasons, the CBSA had failed to consider this alternative to accommodate this employee’s childcare obligations. On appeal, the Federal Court of Appeal also agreed that Ms. Johnstone had established a case of discrimination, though it varied the award to Ms. Johnstone for lost wages: Canada (Attorney General) v. Johnstone, 2014 FCA 110.
Although the case of Ms. Johnstone suggests that there may be a duty for employers to accommodate childcare obligations, the Federal Court noted that the employee may also have an obligation to make reasonable efforts to find suitable childcare before requesting accommodation. As noted by both the Tribunal and the Federal Court of Appeal, the requirement that Ms. Johnstone and her husband both work rotating shifts that included weekends, overtime, and different days or nights, was “one of the most difficult childcare situations” imaginable. This case potentially raises significant issues pertaining to the extent an employer is required to accommodate an employee as it relates to childcare obligations. Employers must consider each request on its own unique facts, but proactive programs, including flexible work arrangements and on-site or employer-sponsored daycare, may limit exposure to human rights complaints on the basis of family status.
By Sara Forte. December 2010. Forte is a lawyer at Hamilton Howell. She advises both employers and employees in all aspects of labour and employment law, including human rights. www.hhbg.ca. This article is reprinted with permission from Sara Forte.
Additional information provided by Ryan Anderson, an employment lawyer with Mathews Dinsdale & Clark LLP (March 2013). Theinformation provided in this article is necessarily of a general nature and must not be regarded as legal advice. For more information about Mathews Dinsdale & Clark LLP, please visit mathewsdinsdale.com.
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