The Alberta Court of Queen's Bench was recently called upon to determine whether an arbitrator was right in holding that an employer discriminated against a single mother when it required her to work the regular night shift rotation. The Court in SMS Equipment Inc. v. CEP, Lcoal 707 (PDF) agreed that this was discriminatory. The employee was entitled to work straight day shifts to accommodate her family situation.

The Facts

While on maternity leave, the employee had applied for a welder position in Fort McMurray. The job involved 14 day rotating shifts (7 days on, 7 days off, with alternating day and night shifts). She was hired for that job.

Before her return to work, the employee's personal circumstances changed. The father of her first child was no longer providing any significant childcare. The father of her second child was simply not in the picture. Neither provided financial assistance. After working her very first night shift, the employee requested straight day shifts. She said the night shifts were "a bit difficult" for her. Given that she was caring for her two children alone during the day, it affected the amount of sleep she could get.

The ensuing discussions with the employer focused in part on the high childcare expenses the employee faced and the types of contributions which the fathers could make. The employer then denied her request. This, despite the fact that a co-worker later agreed to swap his day shifts with the employee through an arrangement brokered by their Union.

An arbitrator found in favour of the Union's position that the employee should be accommodated with straight day shifts. The Company asked the Court to overturn that decision.

The Test to Establish Prima Facie Discrimination

The Court first concluded that family status discrimination laws are wide enough to incorporate issues of childcare costs. The Court recognized that there have been competing approaches in the case law across Canada regarding family status discrimination. The Union was pushing for a broader test of discrimination, while the employer argued in favour of a stricter test. These tests have been expressed in different ways in British Columbia (PDF) and in the federal sector.

The Court favoured the broader approach argued by the Union. That is, where an employee can establish that she is disadvantaged by a rule or policy because of her family status, including financial disadvantage, the rule or policy is discriminatory on its face, thus triggering a duty to consider accommodation. In this case, the employee was adversely affected by the scheduling rules since she either had to sacrifice her sleep or her finances to satisfy her childcare obligations.

In any case, the Court also stated that this employee's circumstances were extraordinary such that discrimination could be established even under the more restrictive discrimination tests developing in parts of Canada. This was a single mother of two young children with no family or financial assistance whatsoever in Fort McMurray. She essentially had no other options and the costs of childcare were a heavy burden considering her means.

The Obligation to "Self-Accommodate"

The Court observed that the employee was not required to first "self-accommodate" by seeking government benefits or commencing legal proceedings against the other parent to get financial support. An employee could still request an accommodation by the employer without having taken such steps. The Court even suggested that it was unfair for the employee to have to undergo an examination regarding her relationship with the fathers of her children, her choice of caregivers, and her personal financial circumstances before the employer considered her request for a shift exchange with another willing employee.

It is also worth noting that, even if she could have secured some financial contribution from the fathers or rearranged her finances to drive a less expensive vehicle, it would not have been enough to eliminate the adverse effect of the night shifts. The employee would still be required to spend money for child care to allow her to sleep.

In other words, according to the Court, any degree of discrimination will suffice when it comes to establishing a prima facie case. Self-accommodation is irrelevant at that stage of the analysis.

Lessons

This decision surprisingly minimizes employees' obligations to help themselves with respect to their family needs when they conflict with work obligations, keeping in mind that this employee applied for a job involving rotating shifts. But the decision does acknowledge that "self-accommodation" efforts can be relevant when it comes to evaluating what accommodation should be provided. This is because all involved parties have a duty to facilitate the search for accommodation. Nonetheless an employer should be cautious not to dismiss too quickly a request for a readily available accommodation it could implement, on the basis that "self-accommodation" appears to be available. It should, at the very least, give due consideration to the request.

This case does little to dispel the uncertainty in the Canadian legal landscape regarding family status discrimination. The law remains divided between British Columbia, Alberta and the federal sector. Until the Supreme Court settles the law, family status issues will remain in flux across the country.