'It's a very beneficial case for employers'
Family status discrimination in relation to childcare responsibilities is tied to changes the employer makes that have an adverse impact on a worker, not a change in the worker’s family status, the British Columbia Supreme Court has ruled in a decision that clarifies the test for family status discrimination in favour of employers, according to Melanie Samuels, a partner with Singleton Reynolds in Vancouver and leader of the firm’s Labour and Employment Group.
“It's not just this blanket approach that if now I have childcare responsibilities, that's the employer’s problem and it's a failure to accommodate if the employer doesn't do something about it,” says Samuels. “This is a very beneficial case for employers in that it sets the standard that if the employer changes something, then that's where then you have to consider accommodation.
“But if the employer doesn't make a change and it's only the employee who wants to be accommodated, that's not going to make it a discrimination claim.”
Lisa Harvey was a journeyman welder for Gibraltar Mines, a mine company operating north of Williams Lake, B.C. Her husband also worked for Gibraltar as journeyman electrician.
Gibraltar operated 24 hours a day, seven days a week, with two 12-hour shifts working the opposite of each other. Generally, each shift would work a pattern of days on and off, with one set of nights per month. Harvey and her husband worked on the same shift most of the time, occasionally working different night shifts.
There was also a third shift of employees working from 7 a.m. to 4 p.m. Monday to Friday, with every other Friday off.
Harvey went on maternity leave after having a child in 2018. In June, she and her husband had a meeting with Gibraltar to discuss accommodation for when she returned to work. They said they had difficulties arranging childcare and requested one of two proposals – permitting them to work eight hours instead of 12 when they had day shifts, or allow one of them to work the Monday-to-Friday eight-hour shift. Gibraltar asked for more information about their efforts to arrange childcare. Harvey provided a letter stating that she couldn’t find any daycares in the area that could provide care during their extended workdays. They also didn’t have family members or friends who could help on a regular basis and their home couldn’t accommodate a live-in caregiver. However, Gibraltar denied the request for accommodation.
Harvey filed a complaint of discrimination based on family status, sex, and marital status, claiming that they had been unable to find childcare that worked with their 12-hour shifts. She also claimed that “undue stress for our family not knowing how to find suitable childcare for an unknown work schedule” negatively impacted her mental health, resulting in her having to get medication.
After Harvey’s maternity leave ended in August, she and her husband had to take several days off for childcare reasons. Gibraltar suggested Harvey be moved to the 12-hour shift opposite her husband, but they rejected it because it could have a negative effect on their family life. Gibraltar then proposed they do it on a temporary basis until their preferred childcare option was arranged, but Harvey also rejected this idea.
Harvey’s husband applied to work on the Monday-to-Friday eight-hour shift and started working on it in January 2019. The arrangement became permanent in March.
Read more: The Supreme Court of Canada refused to reconsider the BC Court of Appeal’s affirmation of the two-part family status discrimination test.
Gibraltar made a preliminary application to dismiss the complaint, arguing that there had been no change in a term or condition of employment and Harvey had not alleged a serious interference with a substantial parental obligation – the two-part test for family status discrimination in BC established by Health Sciences Assoc. of B.C. v. Campbell River and North Island Transition Society, 2004 BCCA 260 and re-affirmed in Envirocon Environmental Services, ULC v. Suen, 2019 BCCA 46. It said that Harvey’s problems were “commonplace childcare difficulties” and Harvey didn’t fully co-operate in the accommodation process, as she just wasn’t able to access her preferred childcare options.
The BC Human Rights Tribunal dismissed the complaint based on marital status and sex, but it declined to dismiss it on the ground of family status. The tribunal found that the evidence could indicate that Harvey had made all reasonable efforts to find adequate childcare and there could be a substantial interference with a significant parental duty.
Gibraltar appealed the tribunal’s decision, claiming that the tribunal incorrectly interpreted the test for prima facie family status discrimination. The change was to Harvey’s family circumstances, not a term or condition of her employment, the company argued, and a conflict between parental duties and work obligations alone should not establish family status discrimination.
The court noted that the BC Court of Appeal in Suen addressed the concerns of opening the floodgates to family status discrimination claims by emphasizing the requirement for a serious interference with a substantial duty or obligation and saying that most situations with a conflict between a work requirement and a family obligation would not satisfy the test for discrimination.
This approach means family status can be treated like other grounds for discrimination – employees have to be accommodated under certain circumstances, but employees with such characteristics aren’t in a protective “bubble,” says Samuels.
“If you steal from your employer, it doesn't matter that you're pregnant and think you can’t be fired – I think it's kind of like that,” she says. “Just because someone has childcare obligations doesn't mean that the employer has to bend over backwards – and it's not to say employers won't do that for all sorts of other good reasons, but the employer isn't obliged to legally.”
The court found that there was nothing in the jurisprudence changing the two-part test established in Campbell River. As a result, it didn’t matter if the evidence could potentially establish a substantial interference with a significant parental duty, because the first part of the test – a change in a condition or term of employment – wasn’t met.
The court quashed the tribunal’s decision that had allowed the family status discrimination complaint to continue.
The decision clarifies how employers can approach family status accommodation requests from employees, particularly if the only change in circumstances is on the employee’s side, says Samuels.
“There's a two-part test and the most critical part of the first requirement is, for it to even be considered discrimination there has to be a change in a term or condition of employment – what that means is that the employer has to have changed something, made a new requirement or changed the shift,” she says. “Before it was murky – someone could say, ‘Well, I worked 12-hour shifts and now that doesn't work,’ or ‘Working the night shift doesn't work for me anymore, because I now have a child and I can't do that.’ Arguably that was enough to bring you into a discrimination claim.
“Now it's clear that no, it's the employer that has to have made a change in your schedule or requirements and only then can you look at the impact.”
See Gibraltar Mines Ltd. v. Harvey, 2022 BCSC 385.
Read more: A BC company’s three years of inadequate accommodation options to a single father warranted more than half a million dollars in damages for family status discrimination, according to the Canadian Human Rights Tribunal.