Human rights legislation across Canada prohibits discrimination on the basis of family status. As part of this prohibition, employers are required to accommodate certain family obligations. Family status is an evolving area of human rights law that has recently garnered considerable attention, in part due to the Federal Court's decision in Attorney General of Canada v. Johnstone.i
Defining Family Status
The definition of family status varies across Canada, and has evolved through the decisions of courts, human rights tribunals, and labour arbitrators. One definitional issue is what types of relationships are covered by family status. In Alberta, the Human Rights Act defines family status broadly as "the status of being related to another person by blood, marriage or adoption." In contrast, the Ontario Human Rights Code defines family status more narrowly as "the fact of being in a parent and child relationship." In the Canadian Human Right Act, which applies to federally regulated employees, there is no specific definition of family status and the Canadian Human Rights Tribunal has chosen to apply a broad definition consistent with the importance and objectives of human rights legislation. A second issue is whether family status is limited to the fact of being part of a particular family, or whether it extends to the obligations arising out of an individual's family status. Originally, family status denoted an individual's status in a particular family. More recently however, there is consensus in Canadian court decisions that family status extends to the obligations arising out of an individual's family status.
The Federal Court Decision in Johnstone
The recent Federal Court decision in Johnstone affirms that an individual's substantial childcare obligations are protected. In this case, a mother returning to work at the Canadian Border Services Agency ("CBSA") after the birth of her second child sought to retain her full time employee status and requested accommodation in the form of a fixed day time schedule. The standard schedule for full time employees was a rotating shift schedule which included night shifts. Ms. Johnstone claimed she was unable to complete night shifts due to her childcare responsibilities. The CBSA refused accommodation to Ms. Johnstone who complained to the Canadian Human Rights Commission. The Canadian Human Rights Tribunal found discrimination on the basis of family status. On judicial review, the Federal Court agreed.
The Federal Court found that in order to make out a prima facie case of discrimination on the basis of family status, an employee must show that the job requirements interfere with the employee's ability to fulfill her substantial parental obligations, and that the employee has tried to reconcile family obligations with work obligations. Ms. Johnstone demonstrated that she had searched for but had been unable to find alternate childcare. Ms. Johnstone's husband also worked a rotating shift schedule that overlapped with her schedule and required more night shifts. An expert witness testified that Ms. Johnstone's childcare requirements were some of the most difficult she could imagine. A prima facie case was therefore established.
Where there is interference with a substantial parental obligation, an employer is obligated to accommodate the employee to the point of undue hardship. The Federal Court was not satisfied that the CBSA had demonstrated undue hardship. The evidence demonstrated that the CBSA had accommodated other employees with daytime schedules on the basis of religious requirements or disability, but refused to consider requests arising out of childcare obligations. This refusal was based on the "arbitrary assumption that the need for accommodation on the basis of family obligations was merely the result of choices that individuals make, rather than legitimate need."
Implications for Employers
The decision in Johnstone will have significant implications for employers including the following.
- Employers must treat employee requests for accommodation on the basis of family status seriously. It will not be sufficient for employers to apply a blanket policy to such requests. Rather, employers must consider each request on an individual basis. Requests for accommodation on the basis of family status should generally be dealt with in a similar manner to requests for accommodation on the basis of other enumerated grounds such as religion and disability.
- Not all conflicts between work and family life will be elevated to the level of human rights concerns requiring accommodation. The decision in Johnstone indicates that it is "substantial obligations" that are protected. A similar view has been expressed in other decisions. In an Alberta grievance arbitration decision, the Jungworth Grievanceii, Arbitrator Ponak stated that family status discrimination "cannot possibly be interpreted as arising in any situation in which a work requirement results in some interference, no matter how minimal, with a parental obligation."
- There is a duty on the employee to attempt to find a solution, or to minimize, work-family conflicts. This has been described as a duty of "self-accommodation".iii In Johnstone, there was specific evidence that Ms. Johnstone had unsuccessfully attempted to find childcare. In contrast, in the Jungworth Grievance Arbitrator Ponak found that there was no prima facie case of discrimination because in that case the grievor had workable alternative child-care arrangements.
- An employer must accommodate substantial family obligations to the point of undue hardship. Real, not speculative, evidence will be required if an employer wishes to demonstrate that accommodating an employee's family obligations would cause undue hardship. The factors taken into account in determining what constitutes undue hardship were set out by the Supreme Court in Central Alberta Dairy Pool and apply to cases involving discrimination on the basis of family status.iv Those factors include: financial cost, impact on the collective agreement, problems of employee morale, interchangeability of the workforce and facilities, size of the employer's operations and safety.
Family status claims are not limited to those relating to childcare obligations. With an aging population, increasing numbers of employees are struggling with the obligations of eldercare. In one recent case, the Ontario Human Rights Tribunal found that an employer discriminated against an employee whose employment was terminated for excessive absenteeism. Many of the employee's absences resulted from the employee's eldercare obligations and there was no evidence that the employer was unable to accommodate the employee's absences.v We expect to see more such cases relating to eldercare obligations. In addition, in Alberta, the broad definition of family status means that family status claims can be extended beyond the parent/child relationship to other relatives. McLennan Ross lawyers will be monitoring this evolving area of human rights law.
i 2013 FC 113 (CanLII) ["Johnstone"].
ii Alberta (Solicitor General) v. Alberta Union of Provincial Employees (Jungworth Grievance),  AGAA No. 5 ["Jungworth Grievance"]
iii International Brotherhood of Electrical Workers, Local 636 v. Power Stream Inc.  O.L.A.A. No. 447 (Jesin).
iv Central Alberta Dairy Pool
v Alberta (Human Rights Commission), 1990 2 SCR 489 ["Central Alberta Dairy Pool"] v Devaney v. ZRV Holdings Limited and Zeidler Partnership Architects, 2012 HRTO 1590 (CanLII)
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