Family status has been a prohibited ground of discrimination under the B.C. Human Rights Code for 20 years. Our courts and human rights bodies often struggle to identify family status discrimination and what accommodation is appropriate. Confusion and misunderstanding about family status issues can pose challenges for employers.
In B.C., the following types of relationships have been considered in the context of family status discrimination:
- childless marriage-like relationships.
- other cohabiting or dating relationships (however it is not clear at this time how far protection extends to these relationships).
- relationships between adult children and their parents (i.e. where an adult child needs to care for their aging parent, or an adult child has special needs and requires care from their parents).
- relationships between custodial parents (such as grandparents who are a child’s caregiver) and a child.
The above list is not closed or exhaustive. There is no definition for the term “family status” in the Code. The definition will evolve and change with societal understandings and perceptions of what constitutes a family. Since many different familial relationships and obligations may trigger a duty to accommodate, employers need to understand the scenarios in which such a duty may arise. A recent survey of cases across Canada found family status discrimination in the following sorts of cases:
- Employers offering different benefits to biological vs. adoptive parents, and fathers vs. mothers.
- Employers reducing benefits (including pay increases and retirement benefits) as a result of an employee taking a leave to meet family obligations.
- Employees being unable to meet standard terms and conditions of employment due to family responsibilities. For example: employees required to work evening or overnight shifts and changes to hours of work initiated by the employer, failure of an employer to oblige a request for part-time work or flexible work schedules based on familial obligations, and employee requests for temporary changes to shift times and responsibilities during pregnancy.
- Preferential treatment of family members or a denial of an opportunity due to policies prohibiting family members from working together.
Again, the above list is not exhaustive of the situations in which a duty to accommodate an employee’s family status may arise. With the expanding notion of what constitutes a family, it is likely that the duty to accommodate will arise in more diverse circumstances.
Employers should consider the following to help prevent claims of discrimination based on family status:
- Review existing policies and benefits to ensure they do not support discriminatory treatment.
- Be sensitive to employees’ family issues and obligations when managing the workforce.
- If an employee requests an accommodation of a family obligation, give this request the same weight as a request for accommodation based on a disability.
- In considering whether an accommodation is necessary, an employer may ask reasonable questions: What is the nature of the child care or other obligation? Is it within the employee’s control? What steps has the employee taken, or can take, to find a resolution to the issue? Such an inquiry is not discriminatory, so long as they are asked in a genuine effort to determine a reasonable accommodation.
- If accommodation is appropriate, employers ought to consider what changes can be implemented without undue hardship. Employers may have to consider differential work arrangements even if they are not in place for other employees.