All of the provinces and territories in Canada (except New Brunswick), prescribe human rights protections based on "family status" (or "civil status" in Quebec, which has been interpreted by the Supreme Court of Canada to include familial relationships). TheCanadian Human Rights Act ("Act") also prohibits discrimination based on family status.
Why does "family status" matter?
Recent numbers from Statistics Canada show that one in four Canadians are providing care to family and/or close friends. The general population is getting older and living longer, and statistics also show that women are generally having more children than they were a decade ago, and are having them later in life. Statistics also show that in the majority of two-parent households, both parents work outside the home. In light of these circumstances, there are many opportunities for employees' caregiving obligations to conflict with their work responsibilities.
The practical reality is that employers need to determine how and if they are required to deal with these conflicting responsibilities when they arise. Even employers in New Brunswick, who are not obligated by legislation to accommodate employees' family status, should be mindful of the requirements that exist elsewhere across the country. Recent decisions of the Federal Court of Appeal and the Human Rights Tribunal of Ontario (discussed elsewhere in this issue) explain that in some cases, employers have a duty to accommodate employees' care obligations for their children and/or parents.
So what does "family status" mean?
Family may mean many things to different people. However, not all relationships that may be understood as "familial" are protected under human rights legislation.
The respective Human Rights Acts in Nova Scotia and Prince Edward Island define "family status" as the status of being in a parent-child relationship.
The Newfoundland and Labrador Human Rights Act contains the same definition, but goes one step further and expressly provides that "child" includes a stepchild and an adopted child, and "parent" includes a step-parent and an adoptive parent.
For example, in these provinces, human rights legislation does not protect an individual who is providing care for a disabled sibling, an aging aunt, uncle or grandparent. Consequently, there is no duty on employers to accommodate employees when these types of family obligations conflict with their work requirements.
The Act, which applies to federally-regulated employers, prohibits discrimination on the basis of family status, but does not define what is meant by that term. However, "family status" under that Act has been interpreted broadly and liberally by courts and tribunals, and in particular, has been interpreted to include child care obligations.
Recognizing the duty to accommodate an employee's family status
When determining whether an employee's family responsibility in a given situation falls within the protected ground of "family status", employers should consider whether the family responsibility goes to an immutable personal characteristic of the employee. In the case of child care obligations, courts have identified such obligations as being integral to the parent-child relationship, in part because the failure to provide care would engage the parent's legal liability.
As importantly pointed out by Michelle McCann in the next article, it is important to remember that human rights protection does not extend to personal family choices, such as children's participation in dance classes, sports events like hockey tournaments, or similar voluntary activities.
A note to New Brunswick employers
Although "family status" is not a protected ground under the New Brunswick Human Rights Act, employees may still be entitled to accommodation for certain family-related characteristics and obligations that overlap with the ground of family status prescribed in other jurisdictions. Certain family-related characteristics of employees may restrict an employer's ability to act and may trigger the duty to accommodate, for example:
- Many needs of pregnant employees or employees who have recently given birth are typically considered under the protected ground of "gender" in New Brunswick.
- If an employer decided to give preference during a layoff to employees who are married, on the assumption that single employees do not need their jobs as much, such a preference would run afoul of the protection of "marital status".
- Refusing to hire or to continue to employ an employee because of the person to whom he/she is married could violate the prohibition against discrimination on the basis of marital status.