All of the provinces and territories in Canada (except New
Brunswick), prescribe human rights protections based on
"family status" (or "civil status" in Quebec,
which has been interpreted by the Supreme Court of Canada to
include familial relationships). The Canadian Human Rights
Act ("Act") also prohibits discrimination
based on family status.
Why does "family status" matter?
Recent numbers from Statistics Canada show that
one in four Canadians are providing care to family and/or close
friends. The general population is getting older and living longer,
and statistics also show that women are generally having more
children than they were a decade ago, and are having them later in
life. Statistics also show that in the majority of two-parent
households, both parents work outside the home. In light of these
circumstances, there are many opportunities for employees'
caregiving obligations to conflict with their work
The practical reality is that employers need to determine how and
if they are required to deal with these conflicting
responsibilities when they arise. Even employers in New Brunswick,
who are not obligated by legislation to accommodate employees'
family status, should be mindful of the requirements that exist
elsewhere across the country. Recent decisions of the Federal Court
of Appeal and the Human Rights Tribunal of Ontario (discussed
elsewhere in this issue) explain that in some cases, employers have
a duty to accommodate employees' care obligations for their
children and/or parents.
So what does "family status" mean?
Family may mean many things to different people.
However, not all relationships that may be understood as
"familial" are protected under human rights
The respective Human Rights Acts in Nova Scotia and Prince
Edward Island define "family status" as the status of
being in a parent-child relationship.
The Newfoundland and Labrador Human Rights Act contains
the same definition, but goes one step further and expressly
provides that "child" includes a stepchild and an adopted
child, and "parent" includes a step-parent and an
For example, in these provinces, human rights legislation does not
protect an individual who is providing care for a disabled sibling,
an aging aunt, uncle or grandparent. Consequently, there is no duty
on employers to accommodate employees when these types of family
obligations conflict with their work requirements.
The Act, which applies to federally-regulated employers,
prohibits discrimination on the basis of family status, but does
not define what is meant by that term. However, "family
status" under that Act has been interpreted broadly
and liberally by courts and tribunals, and in particular, has been
interpreted to include child care obligations.
Recognizing the duty to accommodate an
employee's family status
When determining whether an employee's family
responsibility in a given situation falls within the protected
ground of "family status", employers should consider
whether the family responsibility goes to an immutable personal
characteristic of the employee. In the case of child care
obligations, courts have identified such obligations as being
integral to the parent-child relationship, in part because the
failure to provide care would engage the parent's legal
As importantly pointed out by Michelle McCann in the next article,
it is important to remember that human rights protection does
not extend to personal family choices, such as
children's participation in dance classes, sports events like
hockey tournaments, or similar voluntary activities.
A note to New Brunswick employers
Although "family status" is not a
protected ground under the New Brunswick Human Rights Act,
employees may still be entitled to accommodation for certain
family-related characteristics and obligations that overlap with
the ground of family status prescribed in other jurisdictions.
Certain family-related characteristics of employees may restrict an
employer's ability to act and may trigger the duty to
accommodate, for example:
Many needs of pregnant employees or employees who have recently
given birth are typically considered under the protected ground of
"gender" in New Brunswick.
If an employer decided to give preference during a layoff to
employees who are married, on the assumption that single employees
do not need their jobs as much, such a preference would run afoul
of the protection of "marital status".
Refusing to hire or to continue to employ an employee because
of the person to whom he/she is married could violate the
prohibition against discrimination on the basis of marital
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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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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