A new approach to accommodating family status

Trend among courts and arbitrators shows family obligations no longer have to be extraordinary to require accommodation

The ties that bind

The duty to accommodate employees with family obligations is still developing as is the extent to which family status is a protected ground from discrimination. It used to be the case that employers only had to accommodate family obligations if those obligations were beyond normal needs, such as having children with disabilities. However, recent decisions by courts and arbitrators have shown a trend towards more everyday family obligations requiring adjustments from employers as well.

Employment and human rights lawyer Rhonda Jansen of Gowling Lafleur Henderson LLP takes a look at this trend, compares the different approaches courts have taken towards this issue and advises what the trends could mean for employers as the case law continues to develop.

Accommodation of employees’ family obligations is still a relatively new concern for employers but it has become a legitimate one. Under human rights legislation, employers are prohibited from discriminating on the basis of family status, which includes caregiving obligations held by persons in a parent and child relationship. But does this mean employers must change the rules whenever they interfere with employees’ family obligations? The law is in flux. It is likely that as the case law evolves, discrimination on the basis of family status will be established in more cases than may have previously been expected, and therefore accommodation up to the point of undue hardship will be required. What approach should employers take in the meantime to determine whether accommodation is required?

The Campbell River approach

Many decision-makers refer to the 2004 decision of the British Columbia Court of Appeal in Campbell River & North Island Transition Society v. H.S.A.B.C. — discussed in Canadian Employment Law Today’s Jan. 31, 2008, issue — to stand for the proposition that there will be no prima facie case of discrimination on the basis of family status unless the family obligations in question are very much out of the ordinary. In Campbell River, the B.C. Court of Appeal set down a test requiring a “significant interference” with a “substantial” family obligation before a prima facie case of discrimination on the basis of family status would be met. The court found there was a prima facie case of discrimination where a change in work schedule interfered with a parent’s ability to provide medically needed after-school care for her 12-year-old son, who suffered from a major psychiatric disorder. This approach was followed in the 2006 case of C.S.U. v. C.U.P.E., where a Nova Scotia arbitrator dismissed an employee’s grievance regarding the employer’s failure to consider him for a job in another city due to ordinary family obligations.

“Is every requirement in a job posting to be considered prima facie discriminatory because it adversely affects, or negatively disadvantages, in some way an employee because of her or his marital or family situation?” the arbitrator said. “Are these competing considerations for employers and employees to be litigated at the drop of a complaint?”

The arbitrator relied on Campbell River to conclude there had been no prima facie discrimination and therefore no duty to accommodate. There are several other decisions by tribunals and arbitrators which follow the same approach.

A different approach — Ordinary family obligations

In contrast, other decision-makers have found prima facie discrimination in connection with commonplace family obligations and have required employers to accommodate up to the point of undue hardship. In Rennie v. Peaches & Cream Skin Care Ltd., an Alberta human rights panel found prima facie discrimination when a beauty salon fired an employee for refusing to accept a work schedule that included an evening shift due to an inability to arrange for child care. The panel determined the employee was fired due to a bona fide occupational requirement, but there was a duty to accommodate up to the point of undue hardship. However, the employer was able to establish undue hardship by demonstrating it would need to hire more staff, which was not financially possible.

Which approach is winning out?

The Campbell River approach, which holds there is no prima facie discrimination and no duty to accommodate ordinary family obligations, appears to be coming under increasing criticism.

In 2006, the Canadian Human Rights Tribunal in Hoyt v. Canadian National Railway explicitly rejected the Campbell River approach as inappropriately singling out family status for a different form of analysis compared to other prohibited grounds of discrimination. The tribunal found the B.C. Court of Appeal’s concern regarding serious workplace disruption was a matter for consideration when determining whether the duty to accommodate had been met, but it should not be used to restrict the definition of “family status.”

Similarly, in Johnstone v. (Canada) Attorney General, the Federal Court rejected the Campbell River approach as merging the threshold issue of prima facie discrimination with the bona fide occupational requirement analysis and relegating family status discrimination to a secondary status compared to other types of discrimination. The Federal Court of Appeal referred the matter back to the Canadian Human Rights Commission for reconsideration, without expressing an opinion on what is the correct legal test.

So what is the correct legal test? If the Campbell River approach applies, employers do not have to worry about accommodating ordinary family obligations, because those obligations will not normally pass the prima facie discrimination part of the analysis. If the other approach applies, employers should be considering what steps they could take to accommodate ordinary family obligations up to the point of undue hardship, as they may be required to do so. Unfortunately, the answer is not yet clear and the issue will likely need to be examined by the courts further to resolve the issue for employers. In the meantime, employers should be cautious and look closely at the risks of denying accommodation for an employee’s family status.

For more information see:

•Campbell River & North Island Transition Society v. H.S.A.B.C., 2004 CarswellBC 1012 (B.C. C.A.).
C.S.U. v. C.U.P.E., 2006 CarswellNS 583 (N.S. Arb. Bd.).
Rennie v. Peaches & Cream Skin Care Ltd., 2006 CarswellAlta 1840 Alta. H.R. & Cit. Comm.).
Hoyt v. Canadian National Railway, 2006 CarswellNat 4258 (Can. Human Rights Trib.).
Johnstone v. Canada (Attorney General), 2008 CarswellNat 661 (F.C.A.).

Rhonda Jansen is a partner practising employment law in the Toronto officeof Gowling Lafleur Henderson LLP. She can be reached at (416) 862-4295 or by visiting www.gowlings.com/professionals.

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Family status equal to other grounds of discrimination: Federal Court

Fiona Johnstone was a customs inspector at Pearson International Airport in Toronto. In January 2003, she took maternity leave and returned to work a year later. Because her husband worked a different shift, Johnstone found it was impossible to find a child-care provider to fit their schedule. She requested an accommodation of three fixed 12-hour shifts per week so she could find proper childcare.

The Canada Border Services Agency (CBSA) offered her four shifts to a maximum of 34 hours per week because it had a policy limiting fixed shifts to that amount. She agreed to that arrangement but, after learning disabled employees didn’t have the 34-hour restriction, filed a human rights complaint for discrimination based on her family status.

The Canadian Human Rights Commission rejected her complaint, finding only serious interference with family obligations should require accommodation, but the Federal Court saw differently. The court found since family status was a ground for discrimination, it shouldn’t be treated any differently then other grounds and should merit accommodation equally with disabilities.

CBSA’s fixed-shift policy, the court said, was not designed to “motivate the accommodated workforce,” but rather to discourage some like Johnstone from seeking accommodation.

“While family status cases can raise unique problems that may not arise in other human rights complaints, there is no obvious justification for relegating this type of discrimination to a secondary or less compelling status,” the court said.

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