Early this Spring, the Alberta Court of Queen’s Bench upheld the ruling of an Arbitrator in a union grievance about accommodating family status requirements in the construction industry.
A construction industry welder took a job working 7 shifts on, 7 shifts off alternating days and nights. After having her second child and losing child care help from the father, the welder found herself in a state of both physical and financial exhaustion, trying to care for her kids when she could while paying for care on her difficult schedule. When she asked her employer to relieve her of the night shift requirement, the company refused.
The company’s refusal, however, was not grounded in evidence of undue hardship; in fact, Arbitrator Lyle Kanee found that there was essentially “no evidence” of how accommodating the shift change would burden the company. This, of course, was problematic.
The Arbitrator’s analysis, which was entirely upheld by the Court, was grounded in these considerations, to quote:
- No degree of discrimination is to be tolerated. There is no threshold of discrimination that parents must accept before seeking accommodation from their employers.
- My focus is not to be on the motive or intentions of the Employer but on the effect upon the Grievor. Does the Employer’s rule requiring welders to work night shifts have the effect of imposing a burden on the Grievor due to her family status that is not imposed upon welders who do not share her status?
- It is in the interests of society to share the burden of family responsibilities to the extent that the burdens are borne disproportionately by working parents in a way that impedes their full participation in the workforce. Does the Employer’s rule limit opportunities for the Grievor to fully participate in the workforce due to her family status?
- It is reasonable to expect employers to design their workplace and develop rules and policies that will further these purposes, including reasonable individual accommodation. Has the Employer designed a rule that reflects the differences of individuals in the workforce due to their family status?
- The “choice” to become a working parent, or in this case, a single working parent, and to fulfill the duties and responsibilities of both work and parenthood, do not negate a claim of discrimination.
There is much to be gleaned from this case. First, as the Arbitrator wrote, the “choice” to become a parent does not negate one’s rights to be accommodated as a parent. If this weren’t true, of course, accommodation would be essentially unavailable to parents.
Second, the Arbitrator takes a very strong policy position on why legislatures have adopted family status as a protected ground under human rights law, declaring: “It is in the interests of society to share the burden of family responsibilities to the extent that the burdens are borne disproportionately by working parents in a way that impedes their full participation in the workforce.”
Third, and from a practical perspective most important, if an employer seeks to rely upon traditional schedules or other work standards and to ask the entire work force to adhere to them, it needs reasons. Further, those reasons must depend on facts, and those facts must demonstrate substantial interference in truly important aspects of the work and workplace.
The mere fact of inconvenience or that a change is alien and unwelcome, is not enough to support a refusal to modify a schedule. Where modification is possible – and “possible” means within the capacity of the employer to arrange by, for example, changing others’ schedules – it must be considered and actually done.