Recent Alberta court decision adds to family status accommodation obligations for employers
By Jeffrey R. Smith
Another day, another family status discrimination case.
Family status accommodation continues to be a hot topic in employment law and human rights circles as it seems like one decision after another piles up with something to say on the extent of what employers must accommodate when it comes to the family obligations of employees. The most recent, SMS Equipment v. CEP, Local 707, 2015 CarswellAlta 385 (Alta. Q.B.), was released a short time ago and further shows what’s now expected of employers that have employees burdened with difficult childcare circumstances.
The employee in this case was a single mother of two young children who lived far away from the rest of her family. Each of the children had a different father and the employee was no longer involved with either of them, nor was either involved in the childcare of the kids. With no family in the area, the employee had to pay for childcare when she was at work.
The employee applied for a job that specifically stated would require a week of day shifts followed by a week of night shifts, then back to day shifts and so on. The employee won the job and worked one week of night shifts before she asked for straight day shifts as an accommodation of her parental duties. When working nights, the employee had to either pay for additional childcare during the day or face not sleeping.
The employer denied the request and the employee filed a discrimination complaint. An Alberta court agreed with the employee, finding the option of either paying more for childcare or not getting sleep wasn’t something other workers with the same position had to decide, and the employee was placed at a disadvantage because of her family status and the employer’s rotating shift rule. This adverse effect from the rule created a prima facie case of discrimination, said the court.
Though the employer argued the employee’s situation was the result of her choices, the court disagreed, saying the employee didn’t choose to have no child support and no family nearby, it was just how things turned out. The employer couldn’t prove it couldn’t accommodate the employee with straight day shifts.
This is another case in the wake of the Federal Court of Appeal decision of Johnstone v. Canada (Border Services Agency) where an employee’s obligation to care for her children was deemed part of the protected human rights ground of family status. Family status differs from many of the other protected grounds in that it does often stem from certain choices an employee makes but becomes a situation that the employee probably didn’t want be the case. It’s doubtful the employee in SMS Equipment chose to be a single mother of two young kids far away from her family, but there were a series of life choices that led her down that path.
However, when courts and arbitrators look at family status discrimination complaints, it’s not the path the employee took that matters, it’s the current situation. When someone has kids, they have a legal and moral obligation to look after them. If an employer’s rule creates an adverse effect because of those obligations, that’s grounds for potential discrimination and a duty to accommodate.
Childcare is an important duty for parents and, all things being equal, it shouldn’t eliminate people from participating in the workforce. And, as the court in SMS Equipment put it, it was reasonable to expect employers to develop rules and policies that further the purpose of sharing the burden of family responsibilities.
But as more decisions are released on how much employers are now obligated to accommodate employees’ parental obligations, the worry is there that the line between essential duties and less-essential ones will be blurred. If an employee has more kids that cost more in childcare, should the cost be factored into the adverse effects? In the instance above, could it have been considered accommodation if the employer increased the employee’s compensation to help pay for increased childcare costs when working nights, rather than changing her shift?
The family status accommodation evolution continues.