Law is not yet settled, but a few basic guidelines can help
Back in the day, “family status” was a yes or no question. As in, “Yes, I have one” or “No, I don’t.” With changes in traditional family patterns, an aging population and financial difficulties foisted on families, employers are increasingly faced with demands for accommodation arising from family caregiving needs.
While social and economic forces have been inexorably reshaping both the traditional family unit and the conventional career path for half a century, governments were slow to respond. For example, family status became a protected ground under Ontario’s Human Rights Code in 1982, however, the law is not settled.
What is family status? How do you recognize if there is discrimination on the basis of family status? When is the duty to accommodate triggered?
Under the Human Rights Code, family status means the status of being in a parent-and-child relationship. This includes not only the employee’s relationship with her child but also her parents, whether biological or otherwise. It does not include relationships with siblings or members of an extended family such as grandparents, grandchildren, aunts or uncles, nieces or nephews, or cousins, but does include one-parent families, blended and dual-custody families, as well as families headed by gay, lesbian, bisexual or transgendered persons.
The Supreme Court of Canada has stated family status should be afforded a liberal interpretation so it can advance the broad policy considerations underlying human rights legislation.
Discrimination occurs where workplace policies disadvantage people with significant caregiving responsibilities related to family status, either by imposing burdens that are not placed on others or withholding or limiting access to opportunities or benefits available to others. Generally, where a conflict arises between an important caregiving responsibility and a workplace policy, a duty to accommodate will arise unless the employer can show undue hardship.
Most commonly, caregiving needs involve caring for children or elderly parents. These needs may be stable, regular and long-term or arise from emergency situations. They may also include accommodation for the needs of breastfeeding mothers, such as a place to pump breast milk in the workplace.
In most cases, accommodation is not needed for normal caregiving needs any parents face for their children or any person requires for an elderly parent. When accommodation is needed, it generally takes the form of flexible hours — by relaxing standard hours of work or absenteeism and sick-day policies — and need not be onerous on the employer.
Legitimate employer business interests are recognized as well. In determining whether there is undue hardship, an employer can consider factors such as cost, outside sources of funding, if any, and health and safety requirements. But mere administrative inconvenience is insufficient to meet the undue hardship threshold.
Not every distinction based on family status is seen as discrimination. For instance, it does not include flexibility to accommodate a parent wanting to accompany his child on a school trip or take his elderly parent shopping. There is no obligation to accommodate personal preferences.
Howard Levitt is a lawyer at Lang Michener LLP in Toronto who can be reached at (416) 307-4059. Lai-King Hum is an associate at Lang Michener who can be reached at (416) 307-4086.
Tips for employers
Some pointers on accommodating family status
Employers should be alert to workplace policies that disadvantage employees with a particular family status. While the law is not yet settled, the following guidelines can help employers recognize when the duty to accommodate might be triggered:
• Where an employee’s parent suddenly requires constant care and the employee requests temporary accommodation until permanent-care arrangements can be made, there is a duty to accommodate.
• If a child or parent is seriously ill or disabled, accommodation is more likely to be required, such as when a child is diagnosed with cancer and requires chemotherapy treatments.
• There is no duty to accommodate a parent’s request for time off to see a child’s performance in a play or accompany an elderly parent shopping.
• Refusing to accommodate a request to work part time in order to accommodate breastfeeding is not necessarily discriminatory.
• Terminating an employee for failing to be available for work when the employer has failed to attempt accommodation of the employee’s caregiving responsibilities is discriminatory.
• Where terms or conditions of employment are changed in a way that results in a serious interference with family status responsibility, such as a major change in hours, discrimination may be found and accommodation required.
• If a person who is a caregiver or potential caregiver has been bypassed for promotion because she is seen as less committed or ambitious, there is discrimination.
• A gay, non-biological parent of a child is entitled to the same accommodation regarding a sudden child illness as a biological father or mother in similar circumstances.
