In Kenworthy v. Brewers Distributor (No. 2),
2016 BCHRT 54 ("Kenworthy"), the BC Human Rights
Tribunal (the "Tribunal") considered the issue of family
status discrimination in the context of childcare obligations.
Kenworthy is a helpful update on this tricky topic and is
of particular interest due to the various approaches that courts
and tribunals across Canada have adopted in defining "family
status" obligations in human rights legislation.
Briefly, the facts of the case were as follows. The complainant
worked in the respondent's warehouse. The warehouse ran
three shifts per day (day, afternoon and night) and each shift was
9.5 hours in duration. The complainant was employed as a
casual worker and worked an average of two days per week.
Casual employees were expected to be available for all of their
The complainant and employer entered into a series of
accommodation agreements whereby the complainant was relieved from
some of the normal working hours and scheduled for day shifts only.
The complainant was required to make best efforts to have childcare
arrangements that would enable her to attend at work on a regular
As a result of several workplace incidents, the complainant
alleged that she had been subjected to discrimination on the basis
of sex and family status as well as sexual harassment. The family
status allegations centred on her being scheduled for several night
shifts and missing a training opportunity due to being unable to
arrange childcare, and the employer's refusal to further extend
her accommodation agreement and its insistence that she be treated
like all other non-accommodated employees with respect to hours of
The Tribunal dismissed the family status complaint on a
preliminary basis as having no reasonable prospect of success.
Although the complainant could establish that she suffered some
level of inconvenience as a result of the employer's actions,
this did not rise to the level of interference that resulted in
discrimination under the BC Human Rights Code.
In BC, the test for family status discrimination was confirmed
by the BC Court of Appeal in Health Sciences Association of
British Columbia v. Campbell River and North Island
Transition Society, 2004 BCCA 260 ("Campbell
River"). In order for an employee to establish a
family obligation that requires accommodation by his or her
employer, the employee must demonstrate that a condition of his or
her employment creates "serious interference with a
substantial parental or other family duty".
This test has not been widely accepted in other Canadian
provinces and federally and, instead, a less onerous test for the
employee to meet has been adopted.
Despite the changing Canadian landscape on this issue, in
Kenworthy, the Tribunal applied the "serious
interference" test from Campbell River and concluded
that the complaint had no reasonable prospect of success. The
Tribunal determined that in order to establish a prima
facie case of discrimination on the basis of family status,
the complainant must show that she is a parent with particular
parental obligations, that the employer has treated her adversely
with respect to her employment, and that there is a connection
between her parental obligations and the adverse treatment.
The complainant in Kenworthy failed to do so and her
complaint was therefore dismissed.
Takeaways for Employers
Employers in BC have an obligation to accommodate an
employee's childcare obligations where a workplace policy, rule
or standard imposes upon the employee "serious interference
with a substantial parental or other family duty".
Employers should treat each request for accommodation on a
case-by-case basis and be willing to accommodate if possible.
Written accommodation agreements can be an effective way to
clearly identify the scope of an accommodation and, if used, should
be revisited regularly and updated if appropriate.
Employees must be engaged in the accommodation process and try
to find childcare arrangements that are compatible with work
Previously printed in the LexisNexis Labour Notes
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.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
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.
A former teacher at Bodwell High School has learned a valuable lesson from the B.C. Human Rights Tribunal— it is not discriminatory for an employer to offer child-related benefits to only employees with children.
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.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).