The Canadian Human Rights Tribunal (the "Tribunal") recently issued a series of decisions that affects how employers must consider issues relating to allegations of discrimination based on family status. Following these decisions, employers are under greater obligation to consult and potentially accommodate employees whose parental duties interfere with their work requirements.
Three of the Tribunal's recent decisions involved employees living in Alberta who, while on layoff, were recalled to cover a staff shortage in Vancouver, British Columbia. Their collective agreement provided that a laid-off employee who failed to report to cover a shortage without a "satisfactory reason" would forfeit all seniority rights.
Each of the employees informed her employer that she could not report to Vancouver because of childcare obligations. Two were single mothers, while the third had a husband who worked irregular hours. Each employee was granted additional time to make childcare arrangements; however, when the employees still did not report to Vancouver they were terminated. The Tribunal held that their employer had discriminated against them on the basis of family status and had failed to meet its duty of accommodation.
In a fourth decision, the employee worked a variable shift schedule and asked for static shifts so she could arrange childcare more easily. The employer, pursuant to its internal policies, offered her part-time hours on static shifts but refused to provide full-time hours. The change in employment classification caused the employee to lose certain pension and benefit entitlements that were only available to full-time employees. Once again, the Tribunal held that the employer had discriminated against the employee and had not attempted to accommodate her family obligations.
Three main principles arise from the Tribunal's decisions in these cases.
Family Status Includes Parental Obligations
Under the Canadian Human Rights Act, an employer cannot discriminate on the basis of family status (a similar provision is found in provincial human rights legislation). Traditionally, "family status" was thought only to encompass certain family relationships. For example, an employer could not discriminate against a woman because she was married, or against a man because of his father's identity. In recent years, however, the concept of "family status" has been enlarged beyond this traditional understanding to include the obligations arising from being a mother or a father. The Tribunal has now confirmed that an employer cannot discriminate against an employee on the grounds that he or she has parental obligations such as childcare. Instead, the Tribunal has found that the employer must accommodate these obligations.
Interference With Parental Obligations May Be Discriminatory
There are two competing views in the case law on what constitutes discrimination in the family status context. The first view finds discrimination whenever an employer's actions make it impossible for an employee to participate equally in employment in light of parental obligations. The second position holds that discrimination only occurs if a change in an employee's working conditions creates a "serious interference" with a "substantial" parental obligation.
The Tribunal chose the first, broader position in its recent decisions. According to the Tribunal, discrimination no longer requires a "serious interference," nor does it require a change in working conditions. Rather, it appears that any interference with parental obligations could potentially trigger the duty to accommodate (just as, for example, any interference with an employee's religious obligations would).
The Tribunal's more recent decisions may be consistent with a prior Federal Court ruling; however, the British Columbia Court of Appeal has preferred the second position. The issue of which position is proper has not yet been settled.
The Duty To Accommodate Requires Communication
In some of these recent cases, the Tribunal found that the employer had failed to meet the procedural aspects of the duty of accommodation because it did not respond to several letters from the employees regarding their scheduling situations. Extensions of time were offered without asking or considering what type of accommodation the employees actually wanted. The duty to accommodate must be individualized, and the only way to respond to the employees' individual circumstances would be to speak to them and understand their particular circumstances.
As a result of the Tribunal's approach in these cases, employers might face additional liability if they fail to communicate and consider options. One employer was ordered by the Tribunal to pay each employee $20,000 in damages for its conduct, in part because it failed to respond to employee letters or to make efforts to understand their respective familial obligations.
The Tribunal's recent decisions represent a change from the traditional conception of family status discrimination. This change is likely to affect the duties imposed on employers when faced with requests for accommodation relating to parental obligations such as childcare.
Although the courts and other human rights tribunals have not yet settled upon the proper approach to family status discrimination, it would be prudent for employers to presume that the Tribunal's recent decisions may be followed in the future. It is advisable for an employer to consider requests for accommodation based on parental obligations the same way as any other accommodation request, and to determine if its existing accommodation policies are applicable.
All four of the Tribunal's recent decisions are being appealed on judicial review applications to the Federal Court of Canada, and this may provide an opportunity for the courts to settle upon the proper approach. Decisions are likely in 2011.
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