Membership in the "sandwich generation" no longer means an employee who brown bags her lunch; it means one who's squeezed between raising her children on one side, while at the same time caring for her aging parents on the other side. And it's not just the employees in the sandwich generation who feel the squeeze; it's also their employers. The increasing number of employees sandwiched between generations means the effect isn't confined to the home; it's spilling over into the workplace:
- More dual working parents means more employee absenteeism to care for their children. For example, "The presence of preschool-age children exerts a strong influence on work absences for personal or family responsibilities. In 2011, full-time employees in families with at least one preschool-age child lost an average of 3.0 days, compared with only 1.4 for those in families without children."
- A rapidly aging population and improved medical technology and access to medical care means more seniors living longer – and more demands on their working children to care for them. Between 2006 and 2011, the number of Canadian seniors (65 and over) increased 14%, to approximately 5 million people. And life expectancy in Canada has increased by 10 years from 1960 to 2010, to 81 years of age.
As more and more families struggle to manage competing demands of the workplace and of care-giving responsibilities, family status discrimination claims have risen. Courts and arbitrators have been forced to balance the interests of employees in difficult situations against the value of freedom of contract and the need to be fair to employers. Employers without an appetite for accommodation might be served a human rights complaint for dessert.
Here are the answers to five of employers' most frequently asked questions about accommodating employees on the basis of family status.
1. What is "family status"?
That depends. "Family status" typically refers to a protected ground under human rights legislation. However, human rights legislation varies from Province to Province for provincially regulated employers, and federally for federally regulated employers. Many – but not all – prohibit discrimination on the basis of "family status", and where they do, the definition of "family status" can vary. For example, PEI's human rights legislation prohibits discrimination based on "family status" defined as, "the status of being in a parent and child relationship". Employers should look to the specific legislation in the Provinces in which they operate for the specific requirements when developing policies and making decisions regarding accommodation.
2. What does the "family status" ground protect?
This is a developing area, so the scope of the protection of "family status" is a work-in-progress. But so far, we know it includes the protection of childcare and eldercare obligations:
- Childcare Obligations. Courts and arbitrators have confirmed that the prohibited ground of discrimination based on "family status" includes a parent's childcare obligations, so an employer is prohibited from discriminating against an employee based on his or her childcare obligations. There have been several court and arbitration decisions dealing with employee "family status" accommodation requests, but two of the most well-known are both from the Canadian Federal Court of Appeal: Canada (Attorney General) v. Johnstone, 2014 FCA 110 and Canadian National Railway Company v. Seeley, 2014 FCA 111.
- Parent or "Elder Care" Obligations. Although there are fewer decisions dealing with "family status" discrimination in the context of eldercare, those that do exist seem to confirm that care of a parent is also included in "family status" in human rights legislation. For example, read the Ontario Human Rights Tribunals' decision in Devaney v. ZRV Holdings Limited 2012 HRTO 1590.
- How a Family is Formed. Human rights legislation doesn't necessarily make what constitutes a "parent" clear. It appears there's only one decision that has dealt with the question whether "family status" under human rights legislation includes how someone became a parent. The answer, at least in NS, is that it does. A collective agreement gave adoptive parents a top-up when they went on parental leave, but didn't give the same benefit to biological parents. The employee, a biological parent who was denied top-up benefits, complained this distinction discriminated against him on the basis of family status. The Board agreed, deciding "family status" under the NS human rights legislation includes the nature of the parent/child relationship. Whether other human rights legislation will be interpreted in a similar manner depends on the specific wording of that legislation – but this question is likely to come up again, and this decision will certainly be relevant to the answer. Read the NS Human Rights Commission Board of Inquiry's decision in Adekayode v. Halifax (Regional Municipality), 2015 CanLII 13866 (NS HRC) here.
3. Do employers have to accommodate every aspect childcare or eldercare?
No. It's clear that an employer doesn't have to accommodate every aspect of an employee's childcare or eldercare obligations: only those obligations that engage the employee's legal responsibilities. Courts have set out a clear four-part test employees must meet to succeed in a discrimination claim based on "family status" resulting from childcare obligations:
- Care and supervision. The employee must prove that a child is actually under her care or supervision: that she stands in such a relationship to the child at issue that her failure to meet the child's needs will engage her legal responsibility. For parents, this will normally flow from their status as parents; for other caregivers – those who are not parents – the employee must show she has assumed the legal obligations that a parent would have.
Responsibility. The childcare obligation engages the
employee's legal responsibility for that child, as opposed to a
personal choice. The employee must prove the child hasn't
reached an age where she can reasonably be expected to care for
herself during the parent's work hours. It also requires the
employee to prove that the childcare need flows from a legal
obligation, as opposed to from personal choices: the law protects
the fulfillment of those parental obligations engaged by the
parent's legal responsibility to the child, not personal family
choices. So not all family commitments necessarily trigger the
employer's duty to accommodate; for example, it's not
triggered for requests such as:
- a transfer to another work site to be closer to family;
- accommodation to attend a child's hockey tournament, dance classes, or other similar events or voluntary activities; or
- an alternative shift schedule to spend more time with children even though an alternate childcare arrangement has been made.
- Reasonable Efforts. The employee has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible. An employee must prove that neither she nor the other parent (or guardian) can meet their legal childcare obligations while continuing to work, and that an available childcare service or an alternative arrangement isn't reasonably accessible to them such to meet their work needs. This is highly fact specific, and the employer (or tribunal, arbitrator or court) will review each case on an individual basis having regard for all of the circumstances.
- Non-trivial Interference. The workplace rule in issue interferes with the fulfillment of the childcare obligation in a manner that's more than trivial or insubstantial. The employer (or tribunal, arbitrator or court) must examine the underlying context of each case in which the childcare needs conflict with the work schedule to ascertain whether the interference is more than trivial or insubstantial.
There's hasn't been any decision yet setting out a test for discrimination based on "family status" resulting from an employee's eldercare obligations. However, the few decisions on eldercare obligations have referenced the childcare test, so employers should be able to apply the same considerations with appropriate modifications.
4. What are the penalties for discriminating on the basis of "family status"?
The role of human rights tribunals is to remedy a case of discrimination, and they have broad authority to fashion a solution that's appropriate to make the complainant employee "whole". For example, human rights tribunals can:
- make monetary awards to employees to compensate them for the distress and humiliation of being discriminated against and to compensate them for any loss of income that resulted from the discrimination;
- require employers to stop the discriminatory conduct and rectify the discrimination against the employee generally, or in a particular way, like granting the employee a particular accommodation; or
- require employers to implement training, policies or procedures to address the discriminatory conduct.
The remedy that the NS Human Rights Tribunal Board of Inquiry fashioned in its recent decision finding family status includes how a family is formed (Adekayode v. Halifax (Regional Municipality), 2015 CanLII 13866 (NS HRC)) illustrates the breadth of a human rights tribunal's powers to make an employee whole. The tribunal concluded the employer discriminated against the employee on the basis of family status when it gave top-up benefits for parental leave to adoptive parents, but denied them to biological parents, depriving the employee of money but also time with his child – and awarded him a paid parental leave with top-up even though the child wasn't an infant anymore.
5. How do employers accommodate "family status"?
There's no "standard" answer to requests for accommodation on the basis of "family status" (or on any other basis). As with a request for accommodation of any characteristic protected under human rights legislation, employers must consider each individually and, where appropriate, accommodate the employee to the point of undue hardship.
The legal test for discrimination based on family status resulting from childcare obligations (see Question 3 above) provides employers with a guideline for the considerations they should apply when handling an employee request for accommodation on this basis. Practically, in many cases, scheduling modifications will adequately address requests for family status accommodation; for example:
- changing an employee's existing schedule;
- maintaining an existing schedule;
- allowing the employee to work specific shifts, such as only days, only nights, only mornings; or
- limiting the number of hours an employee works in a day.
In addition, the general guidelines that apply to all accommodation requests apply equally to family status, and will help employers understand their rights and obligations:
- Two-Way Street. Accommodation requests come up as a result of employer-initiated workplace changes, or changes to the personal circumstances of an employee or her family. An employer considering changing its operations should consider how it might impact its workforce and, where possible, provide advance notice of any changes to give employees the opportunity to make necessary arrangements or adjustments.
- Living Tree. The duty to accommodate isn't unlimited, but it is an ongoing and continual process. The accommodation obligations begins when an employer is aware or ought to be aware of the need for accommodation, and may take many forms as an individual's family status and obligations evolve over time. The duty to accommodate doesn't end until the employment relationship ends, or the employer can establish undue hardship.
- One Size Does Not Fit All. An employer might have standardized procedures for evaluating requests and implementing accommodation, but there can't be standardized remedies. Employers must consider the individual circumstances of the employee requesting accommodation and work with her to determine an appropriate accommodation.
- The Right to Know. Employees requiring accommodation can't expect to be accommodated without divulging details of their personal circumstances. An employer has the right to request information about an employee's efforts to meet her obligation without a workplace accommodation, including information about an employee's marital status, whether the employee co-parents, where the other parent works and if so, her respective work schedule.
- Write it Down. Keeping accurate employment records isn't new, but thorough and accurate records of the accommodation process will be important as an employee's accommodation needs evolve and, if needed, could provide a defence to a human rights complaint for failure to accommodate.
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.