A look at Alberta and suggestions for employers
The first of this two-part series — in the March 11, 2020 issue — took a look at British Columbia’s and Ontario’s tests for family status discrimination. Like B.C. and Ontario, Alberta has had its own legal wrangling with family status accommodation that adds to the mix of approaches of which Canadian employers must be aware.
Tests for discrimination in Alberta
A new approach for establishing a prima facie case of family status discrimination in the workplace emerged in the 2015 decision of SMS Equipment Inc v. Communications, Energy and Paperworks Union, Local 707. The SMS Equipment test is more lenient than the Johnstone test; it rejects all but the first two factors in Johnstone.
The case involved a single mother of two children under the age of six who was a welder on rotating shifts. The children’s father did not provide childcare and the employee had no other family nearby. When she was required to work nights, the employee cared for her children herself because she could not afford childcare and got little sleep. When the employer refused to accommodate the employee’s request to work day shifts exclusively, the union filed a grievance, claiming that the employer violated the prohibition against family status discrimination under the collective agreement and the Alberta Human Rights Act.
The Alberta Court of Queen’s Bench reviewed the arbitrator’s finding that the employee had established a prima facie case of discrimination. The court indicated that the correct test for establishing a prima facie case of family status discrimination is the three-part test that applies to other enumerated grounds of discrimination, reaffirmed by the Supreme Court of Canada in Moore v. British Columbia (Education):
• Does the complainant have a characteristic that is protected from discrimination?
• Has the complainant experienced an adverse impact?
• Has the complainant demonstrated that the protected characteristic was a factor in the adverse impact?
The court emphasized that the Moore test should be applied flexibly and contextually, demonstrating that family status is a factor in the adverse impact, and this would require the first two factors in the Johnstone test.
“A claimant must show ‘that a child is under his or her care and supervision’ and ‘that the childcare obligation at issue engages the individual’s legal responsibility for the child, as opposed to a personal choice,’” said the court in SMS Equipment. “This follows from the determination that ‘family status’ includes ‘childcare obligations,’ not personal choices.”
In applying the test, the court relied on the factual findings of the arbitrator:
• The employee, as a single mother of two young children who require childcare, had a characteristic protected from discrimination. Her claim clearly related to childcare obligations and not to personal choices.
• The employee experienced an adverse impact from the requirement to work night shifts.
“[The employee] has two choices. She can pay for additional childcare while she sleeps during the days or she can care for them herself and not be properly rested to fulfill either her work or parenting responsibilities,” the court said, adding that the employee spent more than 75 per cent of her net income on rent and childcare.
The employee demonstrated that the protected characteristic of “family status” — through her responsibilities to care for her children — was a factor in the adverse effects that included going sleepless or spending money on childcare, and the employer’s requirement to work night shifts directly caused the adverse impact.
The court concluded that a prima facie case of discrimination on the basis of family status had been established.
In a subsequent decision, United Nurses of Alberta v. Alberta Health Services, the Alberta Court of Queen’s Bench pointed to SMS Equipment as the correct test in a prima facie case of discrimination on the basis of family status.
An unsettled landscape
When an employee complains that an employer has discriminated on the basis of family status, the employer may develop a reputation for being family unfriendly, regardless of whether the claim has merit. Employers that develop reputations for being unwilling to accommodate employees’ family obligations may encounter difficulty attracting and retaining top talent. This is especially true of millennial employees as this demographic, the largest in Canada’s workforce, will not hesitate to leave jobs that do not meet their family demands.
Federally regulated employers and those exclusively in B.C. and Alberta have clarity with regard to what family status discrimination test will be applied, but elsewhere employers are faced with an unsettled landscape. In these uncertain environments, employers may face adjudicators that apply a more lenient test and others a stringent test, with the possibility that the outcome will differ based on the test applied.
Employers with operations in multiple jurisdictions face a unique scenario of being held to different standards. If they accommodate the family obligations of employees where the test is more lenient but refuse to do so in jurisdictions where the test is more stringent, employee resentment is likely to develop.
We recommend that employers in Canada:
• Develop company-wide accommodation policies with a reasonable approach to legitimate childcare and eldercare obligations, erring on the side of flexibility rather than rigidity in establishing schedules and other arrangements;
• When asked to accommodate an employee’s childcare or eldercare obligations, have an open dialogue with the employee as soon as possible to ensure the employee’s accommodation needs are accurately understood;
• Analyze each request for accommodation of childcare or eldercare obligations in a reasonable manner, taking into sincere consideration whether the request will actually cause difficulty for the employer;
• Upon receiving the employee’s consent, open a dialogue with relevant employees to determine if they are prepared to assist in facilitating the requested accommodation;
• If appropriate, arrange for a temporary accommodation to allow the employee to put satisfactory childcare or eldercare in place;
• Offer the employee an employee assistance program that can assist in identifying satisfactory childcare or eldercare support.
For more information, see:
• SMS Equipment Inc v. Communications, Energy and Paperworkers Union, Local 707, 2015 ABQB 162 (Alta. Q.B.).
• Moore v. British Columbia (Education), 2012 SCC 61 (S.C.C.).
• United Nurses of Alberta v. Alberta Health Services, 2019 ABQB 255 (Alta. Q.B.).
Rhonda B. Levy is a knowledge management counsel for Littler LLP in Toronto. She can be reached at (647) 256-4545 or firstname.lastname@example.org. Barry Kuretzky is a partner with Littler LLP in Toronto. He can be reached at (647) 256-4503 or email@example.com.