Your employee is a single parent. He has to drop his children off at school each morning. They cannot be dropped off earlier than 9:00 a.m. He has to be back at the school by 5:00 p.m. to pick them up from their after-school care. He has no family to assist him. Is he covered by the family status protections in some provinces’ human rights legislation? Do you have to accommodate him? Increasingly, Tribunals are being required to examine this issue – what is an employer’s accommodation obligation where an employee’s needs relating to his family status conflict with employment requirements?
In Steven Falardeau v. Ferguson Moving (1990) Ltd., CanLII - 2009 BCHRT 272 (CanLII) the British Columbia Human Rights Tribunal dismissed a complaint by a single father who claimed he was fired for refusing to work overtime. His reason – the overtime interfered with his obligation to care for his 10 year old son.
Falardeau worked as a mover for Ferguson Moving and Storage on and off between April 2004 and November 2007. On November 29, 2007, Ferguson Moving told Falardeau that he needed to be available for overtime work. Falardeau said that while he was willing to finish a job that started before 4:00 p.m. and went into the evening, he was not prepared to start a new job after 4:00 p.m. He needed to be at home with his son. Although he had childcare available every day, he did not want to work the overtime.
When he refused, Ferguson Moving fired him. Falardeau took his complaint to the B.C. Human Rights Tribunal.
At the hearing
At the hearing, Falardeau acknowledged that when he started his most recent period of employment he knew that his hours would be irregular and long. He also knew that he would have to work overtime to respond to customers’ needs.
Ferguson Moving admitted that Falardeau had made it aware of his family responsibilities. But it argued that working overtime was a condition of employment. Indeed, between 2004 and 2006 Falardeau had worked overtime on more than 150 occasions and in 2007, on more than 15 occasions.
The Tribunal’s decision
Employers can breathe a sigh of relief that the Tribunal did not accept Falardeau’s complaint. In making its decision, the Tribunal considered that:
- there was a well-established pattern of overtime at work that the employer wished to maintain;
- there was no evidence that Falardeau’s son had any special needs;
- Falardeau’s childcare arrangements had not changed; and
- Falardeau was able to obtain coverage for his son’s care if the hours of work were extended.
The Tribunal made it clear that there is a difference between special family obligations and normal, everyday responsibilities. It followed one of the leading decisions (Health Sciences Association of B.C. v. Campbell River and North Island Transition Society (CanLII - 2004 BCCA 260 (CanLII)) where, because of her child’s serious medical and behavioral problems, the employee herself had to provide her 13 year old son’s after-school care. In that case the arbitrator said that discrimination based on family status only occurs where:
- an employer changes a term or condition of the employment; and
- the change results in a serious interference with a substantial parental or other family duty of the employee.
Lessons for employers
Unfortunately for employers, these are not our only family status cases. Although these cases do not draw the parameters of family status too broadly, other Canadian courts and tribunals have questioned why there should be a higher standard of proof for family status complaints than for other grounds of discrimination – why must there be a change in a term or condition of employment? As a result, there is a broad spectrum of family status decisions.
So where does that leave employers? Proceeding with caution. Employers must consider the unique facts and circumstances of each case. If a situation is commonplace or preference-based, there may be no obligation to accommodate. But where an employee’s family responsibilities are unique or mandatory, the duty to accommodate may be triggered. And pay particular attention to changes - in an employee’s personal circumstances (such as family illness or the need to care for an aging parent) and in the terms or conditions of employment. Those changes could also trigger an obligation to accommodate.