Family ties can put employers in knots

Recent case law shows employees’ family status is becoming a potential area of discrimination for employers to be wary of

Accommodating family status

The law concerning human rights claims on the basis of discrimination due to “family status” remains undeveloped. This, however, is changing. A handful of cases are starting to draw the boundaries of when discrimination occurs and when accommodation may be required.

While family status case law in Canada is still in its infancy, courts and human rights tribunals will be confronted with new fact scenarios and, therefore, the opportunity to contribute to an expanding and novel area of the law.

According to the Ontario Human Rights Commission’s 2006-2007 annual report, complaints of discrimination on the basis of family status represent six-and-a-half per cent of all claims and result in average monetary awards of $5,000. In comparison, family status-type discrimination complaints in the United States have resulted in average awards of $100,000 US. Federally, about five per cent of all claims received by the Canadian Human Rights Commission in 2006 were filed on the basis of family status.

The number of family status complaints is likely to increase for two reasons. First, this area of the law is undeveloped and employees and unions will want to push the boundaries with courts, arbitrators or human rights commissions in setting the limits. Second, Canadian demographics and family realities make it an area ripe for conflict. As employer demands and family-responsibilities clash, the number of single-parent or two-working-parent families increase and the population ages, discrimination and accommodation issues could become common.

What is family status?

In Ontario, the Human Rights Code defines it as the “status of being in a parent and child relationship.” Although the precise legal parameters of this definition have not yet been established, it could arguably include a biological or adoptive parent-child relationship, step-parent and child, foster parent and child or even a person in the position of being a parent, such as a child that takes care of a dependent elderly parent.

Federally, while the Canadian Human Rights Act does not define family status, the commission’s website defines it as “the interrelationship that arises from bonds of marriage, consanguinity or legal adoption, including of course, the ancestral relationship, whether legitimate, illegitimate, or by adoption, as well as the relationships between spouses, siblings, in-laws, uncles or aunts, and nephews or nieces, cousins, etc.” Whereas the Ontario definition covers only the nuclear family, the federal definition is more expansive and extends to cousins, uncles, aunts and others.

Even though protections on the basis of family status are not new in human rights legislation, discrimination complaints on this ground remain relatively novel.

The first noteworthy case was the British Columbia Court of Appeal’s 2004 decision in Campbell River & North Island Transition Society v. H.S.A.B. The decision is important for two reasons: It dealt with the definition of “family status” and the court set out a test for establishing a prima facie case of discrimination. The employee was a youth worker who had four children, including a 13-year-old high needs child with a psychiatric disorder. Expert medical evidence established the child’s therapy required both professional as well as parental intervention. When the employer unilaterally changed the start of the employee’s shift time by three hours, she initially complied but later requested a return to her old shift, which the employer refused. The employee was diagnosed with post-traumatic stress disorder and did not return to work.

The court said family status is not an open-ended concept but is limited to the status of being a parent. The application of human rights in this narrow manner conflicts, however, with the general principle accepted by most human rights decision-makers that human rights are to be defined and applied broadly. Notwithstanding the narrower definition of family status, the court left the door ajar to the possibility of a broader definition by indicating a decision-maker must still look at all the facts and circumstances of the case.

The court also described the following three-part test for establishing a prima facie case of discrimination:

•the relationship must fall within the definition of “family status”;
•there must a change or introduction to a term or condition of employment; and
•the change or introduction must result in a serious interference with a substantial parental or family duty or obligation.

Applying the above test, the court concluded the change in shift time resulted in serious interference because attendance during after-school hours was “an extraordinarily important medical adjunct” to the child’s well-being. The court also indicated the “vast majority” of cases would not result in a case of discrimination simply because there is a conflict between work and family obligations.

In 2007, Ontario’s human rights commission issued a policy and guideline document discussing discrimination on the basis of family status.

Employer required mother of three to travel

In an Ontario labour arbitration case, O.P.S.S.U. v. O.P.S.E.U., a mother of three children ages four, six and seven living in near Hamilton was ordered by her employer to attend mandatory training in Mississauga, about an hour’s drive away. Since she had to leave home earlier than normal to attend training, she was required to make child-care arrangements. She asked if she could arrive at the training late, but was told she must be on time. The employee sought from her employer reimbursement for the child-care expenses.

The arbitrator found that by requiring the employee to attend the training session, which was outside her normal daily routine and hours of work, it caused her to make special arrangements. Equally important was that the employer had, on previous occasions, paid for child-care expenses when similar situations arose. The arbitrator found the failure to pay in this instance was evidence the employer acted arbitrarily and without consideration to the employee’s family status.

Shift change interfered with child-care

There is also an interesting case that arose out of a federally regulated unionized workplace. In C.U.P.W. v. Canada Post Corp., a casual employee was, according to company policy, required to accept between 70 and 75 per cent of all her assignments. The collective agreement also stipulated casuals must make themselves “reasonably available for work.” When the employee was called at 6 a.m. to start a 7 a.m. shift, she refused because of child-care obligations and she was subsequently terminated.

There was some evidence her child had early behavioural problems because he was asked to leave school due to aggression. Unlike Campbell River, however, no expert evidence was called. The arbitrator ruled the employer erred when it flatly refused to consider the reasons why the employee could not accept the shift. The arbitrator also found the employee’s daycare difficulties were “exceptional” and reinstated her.

Two other cases, C.U.P.E. v. Canadian Staff Union, an Ontario arbitration decision, and Watson v. Golder Associates, a B.C. Human Rights Tribunal case, are interesting because both complaints of discrimination were dismissed as a result of the employee’s personal preferences and not improper conduct committed by the employer.

How should an HR representative or counsel reconcile these cases? First, if making a change to a term or condition of employment, consider how the change could impact persons in a parent-child relationship and, if a request for accommodation follows, investigate the facts and circumstances of the employee. Second, consider whether the change is likely to result in “serious interference” on family obligations. Third, if accommodation is appropriate, consider all the options an employer would normally consider to accommodate an employee including flexible hours, a compressed work-week, reduced hours or even a leave of absence.

For more information see:

Campbell River & North Island Transition Society v. H.S.A.B., 2004 CarswellBC 1012 (B.C.C.A.).
O.P.S.S.U. v. O.P.S.E.U. (2005), 82 C.L.A.S. 25. (Ont. Arb. Bd.).
C.U.P.W. v. Canada Post Corp., 2006 CarswellNat 5284 (Can. Arb. Bd.).
C.U.P.E. v. Canadian Staff Union, 2004 CarswellOnt 6020 (Ont. Arb. Bd.).
Watson v. Golder Associates, 2007 BCHRT 229 (B.C. Human Rights Trib.).

Michael Conradi is a member of the Labour Employment Group at Miller Thomson LLP’s Toronto office. He can be reached at (416) 595-8550 or [email protected].

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