Canada: Is The Sky Falling? Family Status Discrimination And Shift Shopping

In most jurisdictions in Canada, human rights legislation prohibits discrimination on the basis of "family status." Until recently, few cases were brought alleging discrimination under this branch. However, recent decisions across several jurisdictions have made it clear that employers must be attentive to this ground of discrimination or risk exposing themselves to significant liability.

There are two different ways in which employees have argued that they have been argued against due to family status. One is when they are treated differently due to the identity of specific family members. For example, in B v Ontario, the applicant was fired because his daughter had accused the applicant's brother and President of the employer of molesting her. The Supreme Court accepted that the applicant was fired because of his biological relationship to his daughter, which was discriminatory. There does not appear to be much controversy surrounding this type of complaint.

However, recent cases have largely dealt with employee requests for accommodation due to their family status. These complaints are similar in structure to requests for accommodation by disabled employees. These family status complaints argue that by complicating employees' abilities to fulfil their obligations to their families, employer policies are discriminating against workers with families.

Such accommodation poses serious challenges to employers attempting to efficiently schedule their workforces. It adds another factor that must be taken into account in organizing the workforce. However, unlike what is often the case in disability-related accommodations, in many workplaces the majority of employees may be subject to these familial pressures.

Until recently, few reported decisions dealt with such demands for accommodation. Beginning approximately ten years ago, the volume of cases dealing with this type of complaint has increased. Unfortunately, courts have not reached a consensus on how to deal with them. Three tests have emerged, with their roots in cases in British Columbia, Ontario and the Federal jurisdiction. Each test has used different and vague definitions for what exactly are employees' rights and employers' obligations when it comes to family status.

The Strict Test: Campbell River v North Island Transition Society (British Columbia Court of Appeal)

In Campbell River, the employee in question had a son who a doctor stated was "a very high needs child with a major psychiatric disorder." The employee's new shift schedule conflicted with her ability to take care of her child after his school day.

The court required that in order to show that an employer's policy was discriminatory, the employee must demonstrate that the employer's actions resulted in "serious interference" with the ability of the employee to discharge their familial duties or obligations. The Court went on to opine that it would only be a minority of parenting situations which could trigger a finding of discrimination. According to the Court, given the unique and challenging parenting duties in this case, this was one of those situations.

Under this test, regular parenting duties would not fall under the scope of the activities protected by human rights legislation. This narrow definition would soon be challenged.

The Broad Test: Johnstone v Canadian Human Rights Commission (Canadian Human Rights Tribunal)

In this well-publicized case, a Border Services Officer ("BSO") serving at Pearson International Airport complained that her employer's shift scheduling was discriminatory. The employee had two small children. She argued that the unpredictable timing and scheduling of her shifts infringed on her abilities to take care of her two children.

The Tribunal explicitly rejected the Campbell River test as being too restrictive and not properly protecting employee rights. Instead, it adopted a standard under which any action that resulted in "a substantial impact on a parent's ability to meet that obligation" was prima facie discriminatory. Applied to this case, the shift scheduling severely impacted the ability of the employee to meet those obligations, and was therefore a human rights violation.

This case was of great concern to management-side counsel when it was released. The test used by the tribunal was extremely broad, and seemed to capture almost any employer policy which conflicted with parental responsibilities.

The Middle Ground: Devaney v ZRV Holdings Limited (Ontario Human Rights Tribunal)

The third case involves an employee who was the sole caretaker of his disabled mother. He disagreed with his employer about how much time he needed to physically be at the office, and instead began to telecommute. His employer reiterated that the employee needed to attend at the office in person. The employee refused, and his employment was eventually terminated.

The Ontario Human Rights Tribunal adopted the test from Johnstone with one major caveat. The tribunal stated that accommodation was only available where the parental duty was "required," rather than a choice. This slightly narrowed the test set out in Johnstone, but still allowed a very broad range of employees to claim family status protection.

There are a number of criticisms that can be levelled at these decisions. First and foremost is that none provide a clear and reliable definition of what exactly constitutes discrimination based on family status. It is difficult to glean from these cases of the sort of family situations and obligations of which an employer should be wary. This difficulty is only exacerbated by the differences in between the different decisions. The decision that came from the most influential court, Campbell River, was explicitly rejected in these later decisions.

A legitimate fear of the more liberal of these approaches is that it promotes "shift shopping" where employees with family obligations could legally compel employers to accommodate their shift preferences over employees without those obligations and with disregard to business needs. Unfortunately, a recent decision out of Alberta shows that these fears are well founded.

The Sky Falls Down: SMS Equipment (Alberta Labour Arbitration)

This family status complaint arose in the context of a unionized workplace in Fort McMurray, Alberta. The grievor was an apprentice welder and a single mother with two young children. She had recently been promoted into a position which was scheduled as seven days on and seven days off, with rotating tours of day and night shifts. She worked one session of the night shifts, and requested that her shifts be altered to straight day shifts. She claimed that it was too expensive during the night shifts for her to pay for childcare. It should be noted that neither of her children's fathers offered childcare services nor child support, and she had not applied for any government subsidy for her childcare.

The arbitrator adopted the broad test outlined in Johnstone. He stated that the employer's policy that workers must work night shifts imposed a burden upon the grievor as a mother that other welders did not experience, and therefore prevented her full participation in the workforce.

This case should be of grave concern to employers. First, this was a position which the employee posted into. She was fully aware of the shift schedule of the employer, and within a week, had challenged it and demanded her own shifts. In addition, the arbitrator pointed out how

unique the circumstances of the grievor were, lacking family support and in a non-traditional job and schedule for a female employee. While not common, these are not circumstances that would normally cause an employer to examine accommodation options.

However, this decision and the case law which led to it underscores the extreme caution with which employers must approach any request for accommodation or shift changes by employees due to familial obligations. Employers cannot afford to treat these requests differently from disability claims. They must document every interaction, ensure that their decision making considers human rights dimensions, and ensure that they have legal advice that protects them from potential claims. In addition, they must take a proactive stance towards such accommodations, in order to retain the flexibility to schedule employees as business requirements demand.

IS THE SKY FALLING? SHIFT SHOPPING AND "FAMILY STATUS" DISCRIMINATION

(Complimentary Webinar, April 10, 2014, 12 p.m. to 1 p.m. ET)

Human Rights Tribunals and Arbitrators have made a number of alarming decisions which have required employers to change the hours of employees to accommodate childcare issues. This webinar will provide practical guidance with respect to some of the thorniest issues in this emerging area of the law.

The Webinar will cover:

  • What workers must prove to establish "family status" discrimination in the childcare context;
  • What is required to show "undue hardship" in the "family status" context; and
  • How employers should approach accommodation requests.

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Frank Portman
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