Don’t fear family status (Editor’s Notes)

Over the years, accommodating employees for family obligations has become commonplace

The first time I heard the phrase “family status,” I didn’t know what it meant. It was 2002, I was editing Canadian Employment Law Today, one of our sister publications, and I was relatively new to covering human resources issues.

But family status certainly wasn’t revolutionary to human rights bodies. Ontario’s Human Rights Code, for example, has included it since 1982.

I had to query the lawyer who had written about it for more information. I knew my first thought had to be wrong — that employers were forbidden from discriminating against employees based on their family’s status in the community. Such a law may have made sense in feudal times but seemed a wee bit out of place in modern Canada.

I was hardly alone in my ignorance. In 2007, the Ontario Human Rights Commission released a policy and guidelines on family status. It noted that employers and the general public had a “profound lack of awareness” about it.

The commission also candidly admitted that, while it had been in the code for 25 years, this marked the “first time the human rights issues related to family status have been explored in depth. It is to be expected that the understanding and public awareness of this ground of the code will continue to develop over time.”

That tide of ignorance has undoubtedly turned. Most employers are well aware of the expanding concept of family status and its corresponding obligations, thanks to high-profile decisions in recent years, including “Employers have duty to accommodate child-care needs: Federal Court.” )

Officially, in Ontario, family status is defined as the “status of being in a parent-and-child relationship.” That means anyone with a child, or a parent, may have needs related to family status that trigger an employer’s duty to accommodate — it doesn’t take an expert in demographics (or biology) to calculate what percentage of the population could be impacted.

In 2010, Jennifer Lynch, then chief commissioner of the Canadian Human Rights Commission, defined family status for the federal sector as “the interrelationship that arises from bonds of marriage, kinship or legal adoption, including the ancestral relationship, whether legitimate, illegitimate or by adoption. It also includes the relationships between spouses, siblings, in-laws, uncles or aunts, and nephews or nieces, and cousins.”

With that more encompassing definition, it’s easier to spot Waldo than someone whom family status doesn’t apply to. So with growing awareness, and the sheer scope of workers covered by the definition, it’s not surprising to see employees flexing their muscles and pushing the boundaries of how flexible employers need to be.

But employers shouldn’t despair: Family status accommodation really hasn’t crossed unreasonable boundaries — at least in the decisions to date.

One of the best examples of this was an arbitration ruling in Ontario in 2009 involving Power Stream, an electricity distribution company. When it altered a shift schedule as part of a change in the collective agreement, four employees cried foul and filed grievances, claiming the change caused problems with their parental responsibilities.

All four employees experienced grief, to some extent, as the new hours played havoc with their family responsibilities. Despite that, the arbitration board dismissed three of the four claims.

The one claim it upheld involved an employee with two young children for whom he had joint custody. When his hours changed — from working five days per week from 7:30 a.m. to 4 p.m. to four days per week from 6:30 a.m. to 5 p.m. — he couldn’t find a daycare that could keep his children for the longer hours. An alternate custody arrangement he tried out also didn’t work.

But the message from that ruling was clear — simply changing a worker’s hours does not automatically trigger discrimination based on family status. Like everything else in the murky realm of employment law and human rights, each case needs to be decided on its own merits.

It wasn’t that long ago that it was unthinkable, and downright laughable, that an employer would be legally required to accommodate an employee based on family obligations. Now, not only is it a best practice — think recruitment, retention, productivity, morale — but it’s a well-established human right.

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