In Nelson v. Bodwell High School (No. 2), 2016 BCHRT
75 a single, male teacher with no children claimed that he
was discriminated against on the basis of his family status because
he was not eligible for his employer's Child Benefit Scheme
("CBS"). The CBS provided an annual payment of $1,200 per
dependent child to each full time employee with at least one year
of continuing service. Mr. Nelson did not have any children so he
did not qualify for any payment under the CBS.
Bodwell High School is a co-educational independent school in
North Vancouver. In 2010, Bodwell initiated the CBS which provided
child benefit and education grants in recognition of the fact that
raising and educating children is becoming more expensive. Mr.
Nelson conceded that it was expensive to raise a child (an expense
he did not have) but felt belittled because he did not earn as much
as his colleagues with children, even though some of them had been
with the school for a shorter period of time. He said the CBS was
unfair and that he had been humiliated and harassed by his
co-workers when he tried to raise the issue with them. Mr. Nelson
did not want the CBS to be stopped; he just wanted to receive a
The Tribunal's Decision
The Tribunal accepted that employee benefit plans such as
relocation allowances, parental benefits, and flights home to see
family were becoming more prevalent. In considering whether it is
discriminatory for an employer to provide such benefits to some
employees and not others, the Tribunal will consider:
The purpose of the benefit; and
Whether the exclusion of certain
employees is in accordance with that purpose. If not, and the
exclusion is based on a prohibited ground, then the exclusion is
The purpose of a benefit will be determined in relation to the
need that the benefit seeks to address and not to the
group of people it targets. Once the benefit's purpose is
established, the exclusion of employees must be
"scrupulously" measured against that purpose. Where
exclusions on the basis of prohibited grounds are not explained or
justified completely by the benefit's purpose, then they will
Although there was evidence that Mr. Nelson's entitlement to
the CBS was directly related to his family status as a single man
without children, the Tribunal stated that it is well-established
in Canadian law that differential treatment alone is not sufficient
to establish discrimination. The Tribunal found that Mr.
Nelson's characteristics of being single, young, male and
childless were not normally ones that attracted discrimination, and
that it needed to keep the purposes of the Human Rights
Code in mind in reaching its decision.
The Tribunal determined that the CBS was adopted for the clear
purpose of helping its employees meet the increasing costs of
raising and educating children. It then measured that purpose
against the exclusion of non-parents. Given that the amount of the
payment was based on the number of dependent children each employee
had (and therefore directly tied to how those costs were incurred),
and that the payment was made to all employees with children
regardless of their job duties, gender, or the structure of the
employee's family suggested it was targeted directly at the
costs associated with raising a child.
Mr. Nelson was excluded from the benefit because he had no
children, but he also did not have to incur the additional expenses
related to child-rearing that the benefit was designed to offset.
Distinguishing between employees based on whether they incurred
child-rearing expenses was not discriminatory. Mr. Nelson had not
established a prima facie case of discrimination and his
complaint was dismissed.
Advice for Employers
When considering implementing benefits that target certain
employees to the exclusion of others, employers should take care to
ensure that the distinction is legitimately related to the purpose
of the benefit.
While the denial of a child-centred benefit to Mr. Nelson was a
fairly straight-forward application of the test described above,
not all situations are quite as clear. In contrast to Bodwell's
CBS benefits which were found to be appropriate, various employer
benefit policies have been found to be discriminatory, including
excluding single people from travel benefits, excluding birth
mothers from parental benefits or sickness benefits, and providing
company-paid travel to married employees only.
Employers need to bear in mind the need that a benefit
seeks to address and tailor the benefit accordingly. We recommend
obtaining advice in order to appropriately structure benefit
programs to ensure that they do not inadvertently discriminate
against those employees that are not specifically targeted for the
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.
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.
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).