A recent decision of the British Columbia Human Rights Tribunal (the “Tribunal”) has provided insight into the interaction between requirements to work overtime and the protected ground of family status. The case, Falardeau v. Ferguson Moving (1990) Ltd., c.o.b. Ferguson Moving and Storage [2009] B.C.H.R.T.D. No. 727 (QL) “Falardeau” involved the dismissal of a single father of a ten-year-old child. The employee had worked for the company for 17 years.

The employee was terminated from his position as a mover after he refused to accept a work assignment which would have required a commitment to overtime hours. Immediately prior to his termination, the employee was told that the employer needed him to work overtime in connection to a particular assignment. Although the employee agreed to work overtime in order to finish the job in which he was currently engaged, he refused to commit to any further jobs requiring overtime on the basis that it would interfere with his ability to care for his son. In fact, he stated to the employer that he would assess his willingness to commit to specific assignments on a case-by-case basis depending on his parenting responsibilities and accompanying requirement to be available during evening hours. The employer shortly thereafter terminated the employee. Following his termination, the employee filed a complaint with the British Columbia Human Rights Tribunal. The complaint alleged that the employer’s actions, including the termination itself, constituted discrimination on the basis of family status.

The Tribunal dismissed the complaint, holding that there is no human right to refuse to work overtime. The Tribunal specifically found that the employee had failed to establish any plausible justification to hold that the employer had discriminated on the basis of family status. A key factor for the Tribunal was the fact that the workplace had a well-established pattern of requiring employees to work overtime. In the Tribunal’s opinion, this fact was a clear indication of an understanding within the workplace that assignments often involved irregular hours, including overtime. The evidence demonstrated that the employee had worked overtime on hundreds of occasions throughout his years of service.

The Tribunal also noted as significant the fact that nothing leading up to the employee’s termination had changed with respect to either his work expectations or the employee’s childcare responsibilities. The employee also admitted that it was well understood at the time of his hiring that his work would involve both irregular and lengthy hours. Rather, the Tribunal held that the employee’s obligations were no different from those of other parents with similar obligations towards their children. In fact, the Tribunal found that there were alternatives available to the employee, including daycare, to care for his son in the event that he was required to work overtime. The Tribunal consequently did not find a serious interference with any parental obligation. On this basis, the Tribunal ultimately held that the employee did not successfully establish a prima facie case of discrimination on the basis of family status and that, accordingly, the employer was under no obligation to accommodate the employee.

This case provides further content to the challenging interaction between family status protection and workplace obligations. Not all the cases have been decided in the same way. As an example, Rennie v. Peaches and Cream Skin Care Ltd., unreported, December 4, 2006 (Baergen) is a case from the Alberta Human Rights Panel which upheld a prima facie claim of family status discrimination where an employee was fired for refusing to work an evening shift one day per week because her daycare did not provide evening care. On balance however, the trend in these cases is to avoid holding employers responsible for what are deemed to be “ordinary” parent-child obligations. Family status protection is accordingly applied much more regularly to extraordinary situations, such as where parents are caring for special needs children.

What does this mean for employers?

Keep an open mind when determining which relationships are covered by family status protection. For example, the Ontario Human Rights Code defines family status as “the status of being in a parent and child relationship.” This definition however, has been liberally interpreted by both courts and tribunals to include most parent and child “type” relationships including non-biological parent and child relationships and non-biological gay and lesbian parents. The Ontario Human Rights Commission has also taken the position that family status protection extends to individuals providing eldercare to aging parents. Given the aging population, employers should prepare for family status accommodation requests from employees who are looking after older parents with special needs.

Approach with Caution

As with all accommodation requests, employers should specifically avoid a blanket approach to such claims and rather use a case-by-case analysis in order to respond appropriately and reduce the risk of liability associated with these claims. In particular, employers should ask employees why this type of accommodation is necessary, as well as ask about other options available to them.

Well-designed contracts and/or policies

Employers should strongly consider carefully drafting both employment contracts and accompanying policies in a manner which clearly sets out expectations with respect to work. This approach can help to provide flexibility for employers while reducing the potential for employees to claim that a work process and/or practice has changed substantially.