A correctional officer with 20 years’ experience grieved a shift schedule change, claiming that the new requirement that she work night shifts amounted to discrimination based on family status.
Until 2008, D.J., a single mother with an 11-year-old child, had been rotating between day and afternoon shifts and avoiding the night shift courtesy of a female colleague who voluntarily worked permanent nights across the shift schedule at the co-ed correctional facility.
Following that colleague’s reassignment, the female officers on D.J’s “A” shift were required to cycle through the night shift. For D.J. this meant five sets of night shifts totaling 30 days per year.
While D.J. could call on some child-care assistance from her mother and ex-husband — a registered nurse who worked permanent nights — there were limitations because of competing obligations.
Took time off for child care
Faced with difficulties in making child-care arrangements, D.J. instead took time off using vacation, banked time and family sick leave. Ultimately, she filed a grievance claiming that the schedule discriminated against her based on family status contrary to the Alberta Human Rights and Citizenship Act and that the employer had a duty to accommodate her.
As a single parent with a child who could not be left alone overnight, D.J.’s new shift schedule was a source of significant anxiety the union said. D.J. was being discriminated against based on her family status and she was entitled to accommodation.
D.J. was not the only corrections officer with family obligations the employer said and her circumstances did not meet the test of family status discrimination.
Choosing a middle path through the jurisprudence between the high (Campbell River) and the low (Johnstone) threshold for establishing discrimination based on family status, the arbitration board said that D.J. had not done enough to show that reasonable alternatives for care were not available.
“The Board accepts that all work requirements have some degree of interference with parental obligations. Absent express public policy, such as that enacted with respect to maternity leave, family status discrimination cannot possibly be interpreted as arising in any situation in which a work requirement results in some interference, no matter how minimal, with a parental obligation.”
Employee onus
Any examination into whether or not a prima facie case for discrimination based on family status can be made out must look at the efforts the employee has made to balance his or her work and family obligations, the Board said.
“Parental obligations … involve more than being at home at night, though that may be the preferred option. Given the need to balance work and family, parental responsibilities also involve, in the Board’s view, diligently exploring reasonable alternatives to ensure night-time coverage. Otherwise no single parent could ever be assigned to night shifts or late evening shifts.”
The onus was on D.J. to show that there were no reasonable alternatives.
In the Board’s view, there were alternatives. D.J.’s ex-husband was able to cover some of the nights as were some of D.J.’s other relatives. Hired help was available too, the Board said, when family was unavailable.
While the Board accepted that neither D.J. nor her son were enthusiastic about the possibility of such arrangements, there was no evidence to suggest that alternative care options would have a negative impact on D.J.’s son’s well-being.
The evidence did not support a finding that reasonable alternatives for care were unavailable, the Board said. D.J. had failed to make out a prima facie case of family status discrimination and the grievance was dismissed.
