When who your spouse is gets you fired

Was a fired employee discriminated against because of his family connections? Is this covered under “family status” provisions in human rights legislation? The Supreme Court of Canada has come down with a broad definition of family and marital status that states a person is protected from discrimination based on relationships to others.

In B. v. Ontario (Human Rights Commission) (2002 SCC 66), the Supreme Court of Canada interpreted the definition of “marital status” and “family status” under the Ontario Human Rights Code broadly enough to encompass situations where who someone’s relatives are becomes a factor in termination.

Prior to this decision, the courts disagreed on the scope of marital and family status, which led to uncertain and uneven development across Canadian jurisdictions. One line of case law held that the identity of a particular spouse should not be included in the legal concept of marital status. A second line of cases embraced a more liberal interpretation, holding that the identity of a spouse might be included in marital status.

In B. v Ontario, the court used the aliases A and B to refer to the terminated employee and the employer respectively, because of sensitivities regarding the employee’s daughter and allegations that B abused the child.

A was fired by his superior (and brother-in-law, B) in September 1990. A was 56 years old, had worked at the company for 26 years and was only four years away from retiring on full pension. B was vice-president and manager of the company.

The termination resulted from A’s daughter and wife accusing B of sexually abusing the daughter. On the first workday after the confrontation, A reported to work as usual. B proceeded to shout at him about his wife and daughter, and told him he was terminated.

A initiated a claim against B and the company under the Human Rights Code, asserting he had undergone employment discrimination on the grounds of “family status” and “marital status.”

A Board of Inquiry acknowledged that it may be natural for B to feel uneasy about A’s future loyalty to the company. However, at the time A was terminated, there was no valid basis for concern, as he had not talked to B about the allegations of sexual abuse or even indicated that he believed them. The board found that B’s presumptions about A were unfounded and premature.

The board concluded that differential treatment because of A’s relationship with his wife and daughter constituted discrimination on the basis of marital and family status.

B argued the definitions of “marital status” and “family status” under the code protects individuals who are members in a class or group of persons (for example, you cannot refuse to hire someone because they are married) but do not protect an individual from discrimination based on the particular identity of one’s spouse or child.

The board held the overarching goal of the code is to prohibit differential treatment on the basis of the listed prohibited grounds of discrimination. The Supreme Court held employees should be dealt with on the basis of individual merit. Employees should not face discrimination on the basis their family relationships.

The board’s decision was appealed by B to the Ontario Divisional Court. It ruled the code was not intended to relate to specific relationships, but rather to one’s status in general. The case then went to the Ontario Court of Appeal, where the board’s original decision was reinstated. The Court of Appeal held that A was terminated due to animosity based on the identity of his wife and daughter, he was therefore discriminated against.

The case was then appealed to the Supreme Court of Canada, where the court accepted the reasoning of the Board of Inquiry and Court of Appeal.

The Supreme Court found further support for this interpretation in the wording of s. 24(1)(d) of the code, which sets out a specific defence to the right of equal treatment in employment matters for employers who institute an anti-nepotism policy. The court found that because the code addresses nepotism or anti-nepotism policies as an exception to the general rule, there was a legislative intention to protect employees from differential treatment because of the identity of a spouse or relative.

The Supreme Court’s interpretation of family and marital status advances the broad policy considerations of the code, which are to eliminate discriminatory treatment on the basis of irrelevant personal characteristics and require employers to deal with each individual on the basis of merit.

Protecting your firm

DEPENDING on provincial human rights legislation, you may or may not be able to implement a nepotism or anti-nepotism policy.

1. Even if the legislation allows for it, there may be limitations. For example, under the Quebec Charter of Human Rights and Freedoms, employers can only select applicants: (i) based on the requirements of the job; (ii) if they run a non-profit organization; or (iii) if the organization is for the benefit of a specific ethnic group.

2. If an employer does choose to implement an anti-nepotism policy, it should not be too broad. Such policies typically aim to prevent a conflict of interest from arising. There is no legitimate need for such a policy where a conflict of interest could not possibly arise (see the Brossard v Quebec case, lower box).

3. When drafting an anti-nepotism policy, remember human rights legislation will always be interpreted with the goal of protecting individuals from intended, or unintended, discrimination.

4. It is possible that relatives may be working together. If a problem arises with one family member, action should not be taken against a relative without cause.

What the courts are saying...

•In Brossard v. Quebec, the Supreme Court of Canada held that an inquiry into discriminatory conduct based on marital or family status can include the particular identity of a spouse or family member. The complainant in Brossard was a young woman who applied for summer employment as a life guard with the municipality of Brossard. Her application was refused on the basis of the municipality’s anti-nepotism hiring policy, as her mother was a typist for the municipal police. Under the Quebec Charter of Human Rights and Freedoms, hiring decisions can only be based on the aptitudes or qualifications required for the job.

The complainant argued that the municipality’s policy was discriminatory, as she was not considered for the position due to her “civil status,” a ground set out in the code. The Supreme Court of Canada held that the term “civil status,” in this context, means many kinds of close family connections, including the relationship between a mother and daughter. The court found the anti-nepotism policy constituted discrimination based on the complainant’s civil status, despite the municipality’s legitimate concerns in instituting the policy.

Brossard v. Quebec (Commission des droits de la personne) [1988] 2 SCR 279.

•In Janzen v. Platy Enterprises, the Supreme Court of Canada held that sexual harassment constituted discrimination on the basis of sex under the Manitoba Human Rights Act. The complainants were waitresses subjected to constant sexual harassment by a co-worker. The manager of the restaurant refused to do anything about the situation, and the complainants resigned or were dismissed over the matter. The court found discrimination in the workplace, including sexual harassment, has the effect of limiting opportunities and quality of employment on the basis of gender. The court held that although discrimination is based on treating an individual as part of a group, this is only one factor in the discriminatory treatment of a single individual. A finding of discrimination does not require that all the members of a group be treated the same way, for if it did, legislative protection would be of little value. This concept was applied in B. v. Ontario, where it was held that discrimination on the basis of the particular identity of the complainant is not beyond the scope of Ontario’s Human Rights Code.

Janzen v. Platy Enterprises Ltd. [1989] 1 SCR 1252.

Peter Israel is counsel to Goodman and Carr LLP, a Toronto law firm. He is head of its Human Resource Management Group and the GC Human Resources Management Training Institute. For more information contact [email protected] The author gratefully acknowledges the contributions of Chris Foulon and Karen Ballantyne (both of Goodman and Carr LLP) in the preparation of this article.

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