Both the Nova Scotia Human Rights Act, as well as the
Canadian Human Rights Act (which applies to federally
regulated entities) explicitly protect family status as a
prohibited ground of discrimination. Family status was, for many
years, the "poor cousin" of better known prohibited
grounds of discrimination such as sex, disability, or race, but
several recent high profile legal decisions are clarifying
employers' duties in this area. The Nova Scotia Human
Rights Act, like most other similar legislation across Canada,
defines family status as the status of being in a parent-child
relationship. Case law has taken this to be inclusive of caring for
children, as well as caring for elderly parents. As most employees
have children and/or aging parents, this protected ground is an
important area for employers to be aware of their evolving rights
Where an employee can demonstrate that they are being
discriminated against on the basis of a prohibited ground of
discrimination, such as child care issues which affect their
ability to work, the employer will have a duty to accommodate the
employee. The duty to accommodate under human rights legislation
continues until it is impossible for the employer to accommodate
without incurring "undue hardship". This means the
employer is expected to bear some hardship. What constitutes undue
hardship is fact-specific, and will be different in every
In the past several years across Canada there have been a number
of high profile claims of discrimination on the basis of family
status which have been successful at various levels of
adjudication. Two involved child care issues and one dealt with
caring for an ill parent.
These cases have confirmed that where an employee with child or
elder care issues can show they are experiencing differential
treatment at work as a result of their family-based issues,
employers have not only a duty to accommodate, but may indeed be
under an obligation to initiate a conversation with the employee
about accommodating their needs. The cases also suggest that
employers should carefully review their relevant policies to ensure
that they are current and are being implemented consistently and
fairly across employees. In two of the recent cases the
Court/Tribunal took a dim view of employers who appeared to have
ignored their own written policies in dealing with an
employee's need for accommodation on the basis of family
status. As a starting premise, employees have a duty to try to work
out their own family care issues. Every employee must make
reasonable attempts to deal with their own family needs; but in a
situation where an employee is experiencing significant difficulty
they may approach their employer for accommodation. If they do so,
the employer is obliged to carefully consider the request, and
implement accommodation(s) to address the issues where possible
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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