Many parents know that a big, purple dinosaur named “Barney” sings about the meaning of family. In the human resources context, the question is not so much the meaning of family, but rather the meaning of “family status.”
Human rights legislation at the federal level and in each of the four Western provinces specifically protects against discrimination in employment on the basis of “family status.” The issue of “family status” has become a hot topic in recent years. Courts, tribunals and arbitrators have been increasingly called upon to examine an employer’s accommodation obligation where an employee’s needs relating to his or her family status have come into conflict with workplace requirements. For instance, does an employer have a legal obligation to accommodate employees who have childcare challenges or other family obligations, such as caring for an ailing parent?
Finding an Answer: Campbell River and the Serious Interference with a Substantial Obligation Test
The leading decision on the issue of when the duty to accommodate in the workplace is triggered by a family status-related need or obligation was made in 2004 in the case of Health Sciences Assoc. of B.C. v. Campbell River and North Island Transition Society. In that case, the employer informed an employee that her hours of work would be changing. The employee made a request to continue working her usual hours because her 13-year-old son had serious medical and behavioural problems that required her to provide him with after-school care. The employer refused, and the union filed a grievance on the employee’s behalf alleging discrimination on the basis of family status.
The arbitrator dismissed the grievance finding that there was no discrimination. However, the British Columbia Court of Appeal ultimately reversed this decision. In doing so, it found that to prove discrimination an employee has to show:
- the employer changed a term or condition of the employment; and
- the change resulted in a serious interference with a substantial parental or other family duty or obligation of the employee.
Only where an employee is able to prove both parts of the two-stage test is discrimination established. The onus then shifts to the employer to justify such a change by proving that the change constitutes a bona fide occupational requirement (BFOR). This includes establishing that the employee cannot be accommodated without imposing undue hardship upon the employer.
Unsettled Law — Hoyt and Johnstone
Campbell River remains the only Canadian Court of Appeal authority on the subject as to what constitutes a prima facie case of discrimination on the basis of family status. However, recent decisions give rise to questions concerning its future authority. For instance, the decision has been criticized by both the Canadian Human Rights Tribunal in Hoyt v. Canadian National Railway and the Federal Court of Canada in Johnstone v. Canada. In Johnstone, the court stated that there is no reason to apply a higher standard of proof to demonstrate discrimination in the context of family status complaints than for other grounds of discrimination by requiring a change in a term or condition of employment. Similarly, in Hoyt, the Tribunal stated that it would be inappropriate for “family status” to have a more restrictive definition than other prohibited grounds of discrimination.
On the other hand, human rights tribunal decisions from the Western provinces have continued to apply the Campbell River test. It will be interesting to see what developments will follow in this area of the law, as there is no doubt that this is not the last word on the issue.
Lessons for Employers
Although the case law does not provide much guidance regarding the type of family obligations or duties that are sufficient enough to constitute the prohibited ground of “family status,” a few lessons can be taken from these and other cases within this growing area of the law:
- If an employee is experiencing a conflict between a family-related obligation and the requirements of his or her job, and the employee cannot or is unable to resolve the conflict on his or her own, you need to proceed with caution. In certain circumstances, you will be required to accommodate the family obligations of your employees to the point of undue hardship. For example, this may require you to be flexible about absenteeism policies, leaves of absence or hours of work.
- It is unlikely that all family commitments are sufficient to equate to “family status.” Factual situations that are commonplace or preference-based, as opposed to mandatory or essential, are unlikely to trigger a duty to accommodate.
- It should be noted that the concept of family status may not necessarily be limited to an employee parent-with-child relationship. It may go beyond that to include a much broader range of familial relationships, such as a child-parent relationship involving an employee who needs to care for an aging parent.
- It is likely that your duty to accommodate can be triggered through a change in an employee’s personal circumstances, such as the birth of a child or a family illness.
- It is likely that your duty to accommodate will be triggered through a change in work scheduling that causes a disruption to an employee’s attempts to fulfill family obligations.
- Even if the employee can establish a prima facie case of discrimination, you can still try to establish that the change or decision made was based on a BFOR and that accommodation would impose undue hardship.
It is hoped that future cases will better define the boundaries of “family status” protection in the workplace and provide further direction to employers.