Discriminating on the basis of family status has been illegal in most Canadian jurisdictions for years. But it’s only recently that the courts and adjudicators have been called upon to decide the scope of an employer’s obligation to accommodate on the basis of family status.
Generally in these cases, an employee asks to miss work (or change her hours) to care for a child or parent, and the employer refuses.
In reality, most work obligations interfere with parental obligations, but employees are usually able to make alternate arrangements for their children or parents. The issue in family status cases is whether a parental obligation trumps a work obligation.
If work obligations always trump parental obligations, then a parent could never prove discrimination. If parental obligations always trump work obligations, then an employer would always be required to accommodate the employee’s request.
That’s why there is a two-part legal test: The first part is proving discrimination and the second is the duty to accommodate.
Generally, an employer has no duty to accommodate an employee unless he can prove a prima facie case of discrimination. Most family status cases have focused on whether the employee has proven discrimination.
Toronto-based Kevin MacNeill of Heenan Blaikie and Kristin Taylor of Cassels Brock presented interesting papers on this issue this past summer. They mentioned three different interpretations of family status discrimination:
The "narrow (British Columbia) approach": This requires a change in a term of employment that results in a serious interference with a substantial parental or other family duty or obligation.
In the 2004 case Health Sciences Assn. of British Columbia v. Campbell River, the B.C. Court of Appeal stated: "In the vast majority of situations in which there is a conflict between a work requirement and a family obligation, it would be difficult to make out a prima facie case (of discrimination)."
The "broad (federal) approach": This is much different than the B.C. approach. In the 1993 case Brown v. Canada, the Canadian Human Rights Tribunal held that an employee may establish a prima facie case by showing an adverse impact on a parental obligation. In that case, the employee was unable to arrange satisfactory child care to cover some of her night shifts and asked for daytime shift assignments — but her employer refused.
The tribunal concluded discrimination took place and the employer had failed to accommodate the employee.
The tribunal and the federal court have rejected the B.C. approach and concluded it is not incumbent upon an employee to prove serious interference with a substantial parental or other family obligation to prove discrimination.
The "middle approach": An Ontario arbitrator rejected both the B.C. and federal approaches and adopted the middle approach.
In the 2009 Power Stream ruling, the arbitrator set out five factors that should be considered when deciding whether an employee has made out a prima facie case of discrimination including:
•What prompted the adverse effect on the employee — a change in a term of employment or a change in the employee’s personal circumstances?
•What efforts has the employee made to self-accommodate?
A 2012 decision of the Ontario Human Rights Tribunal that considered accommodation for elder care also rejected the B.C. approach.
In this case, the employer changed a five-day, eight-hour shift schedule to a four-day, 10-hour schedule. Arranging for spouses to pick up children was reasonable self-accommodation in every case except one, found the arbitrator.
In the one case, the employer was found to have failed to accommodate because the new work schedule interfered with a single father’s custody schedule.
In a subsequent arbitration decision, the arbitrator in Alberta (Solicitor General) discussed a parent’s obligation to explore reasonable alternatives. In this regard, he stated:
"We view the evidentiary burden for establishing a prima facie case for family status discrimination as analogous to the burden on employees asking for accommodation on the basis of disability… the employee... bears the onus of providing sufficient evidence of the absence of reasonable alternatives for care."
In the 2013 Mount Sinai Hospital v. Ontario Nurses’ Association, the arbitrator considered the conflicting approaches mentioned above, referred to one of his own earlier decisions and concluded:
"More than a negative impact is required to make out a case of prima facie discrimination... I continue to believe that ‘family status’ protection is not limited to situations where an employer has altered terms or conditions of employment giving rise to a ‘serious interference with a substantial family duty or obligation,’" he said.
"Instead, I am of the view that the test set out by the Court of Appeal in Ontario (Disability Support Program) v. Tranchemontagne… applies equally to all claims of discrimination under the code."
It will be difficult for employers to know what constitutes prima facie discrimination until the Supreme Court of Canada decides how to reconcile these three different lines of cases.
Duty to accommodate
Once an employee has proven prima facie discrimination, the employer has a duty to accommodate unless it causes undue hardship. It is essential that the employer satisfy both the procedural and substantial aspects of the duty to accommodate.
An employer has a positive duty to inquire and assess an accommodation request on a case-by-case basis.
Here are questions to consider when responding to a request for family status accommodation:
•What are the parental or family obligations that conflict with your work obligations?
•How do these obligations conflict with your job duties?
•How long do you expect this conflict will last?
•What accommodation do you require?
•Other than asking for accommodation at work, have you considered other ways of meeting family obligations?
•If so, what alternatives have you considered?
So, what is an employer to do? At the moment, it depends on where the request for family status accommodation is made.
B.C. employers have the least onerous obligations, while federally regulated employers appear to have the most onerous obligations.
Regardless of its jurisdiction, an employer should carefully review the factual background surrounding each employee’s accommodation request.
Thereafter, the employer and employee should collaboratively explore possible solutions together.
Given the aging population and our burdened health-care system, I expect the number of requests for family status accommodation will increase in the future.
For more information see:
•Alberta (Solicitor General) (2010), 192 L.A.C (4th) 97 (Ponak)
•Ontario (Disability Support Program) v. Tranchemontagne, [(2010), O.N.C.A. 593 (CanLII)].
Doug MacLeod is an employment lawyer at the MacLeod Law Firm in Toronto. He can be reached at (416) 317-9894, (888) 640-1728 or firstname.lastname@example.org.