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The hazy realm of family status

Family status is a relatively new ground for discrimination under human rights legislation with potentially huge implications for employers

By Todd Humber (todd.humber@thomsonreuters.com)

There’s an employment law pendulum swinging out there that, in recent years, has leaned a little more towards Bob Cratchit and a little further away from Ebenezer Scrooge, much to the chagrin of some employers.

Sure, employers score small victories from time to time but there’s no denying, when it comes to workplace law, Canadian legislators and courts have more of a soft spot for David than Goliath. Employers experience this first-hand when it comes to clearing high bars set for issues such as just cause dismissal and accommodation to the point of undue hardship.

For HR professionals, ensuring policies and practices don’t run afoul of the law is one of their most important and visible roles. But where the rules aren’t clear, it’s tough for HR to know exactly where and when to draw a line in the sand.

Unfortunately, in too many cases, the rules are a little murky. And one of the haziest areas is an employer’s obligation to accommodate a worker because of family status, as evidenced by one of the cover stories on the Sept. 6, 2010, issue of Canadian HR Reporter. (See “Must accommodate child care: Tribunal,” page 1.)

That article was sparked by a ruling that found an employer discriminated against an employee because it didn’t accommodate her child-care responsibilities.

Family status is a relatively new ground for discrimination under human rights legislation with potentially huge implications for employers. Let’s take a look two recent cases and how the courts handled them, taken from the pages of Canadian Employment Law Today (www.employmentlawtoday.com) which has more detail on these cases and others dealing with family status.

The ailing spouse: Canada Safeway thought it was keeping things fair for all employees by requiring clerks to rotate through the night shift. But a human rights panel ruled it discriminated against a produce clerk in Alberta who had been with the company 27 years when it didn’t exempt him from night-shift duties so he could look after his ailing wife.

The panel was critical of the grocery store’s attempt at accommodation, which consisted of offering the worker a cashier position, which he considered a demotion. That was the “most convenient” option for Safeway, but it wasn’t enough to satisfy the panel. The worker was awarded $20,000 in lost wages and $10,000 in general damages.

The single dad: A mover for Ferguson Moving in Vancouver refused to work past 6 p.m. because he didn’t want his 10-year-old son to be home alone after school. The worker made arrangements with a daycare service to pick his son up and look after him until 6 p.m. The company found the overtime refusal unacceptable and fired him.

He sued, seeking $35,000 in damages and a letter of apology. But the British Columbia Human Rights Tribunal said there was no indication the requirement to work overtime constituted a “serious interference with a substantial parental or other family duty or obligation and the employee had backup child care.”

Until the smoke clears on family status, it will be hard for employers to gauge exactly what they should be doing (and even then it won’t be crystal clear — see just cause or accommodation of disability).

But general HR best practices and common sense will work pretty well when it comes to family status. Treat all employees fairly and consistently but don’t be afraid to make an exception where appropriate. And always remember the bar for undue hardship has been set pretty high before digging in your heels.

Todd Humber is the managing editor of Canadian HR Reporter, the national journal of human resources management. For more information, visit www.hrreporter.com.

Todd Humber

Todd Humber is the publisher and editor-in-chief of Canadian HR Reporter, the national journal of human resource management. Follow him on Twitter @ToddHumber
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