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.
Although the issue decided by the Tribunal in Nelson v.
Bodwell High School, 2016 BCHRT 75 (Nelson) sounds
extremely straightforward when framed in this way, the decision
itself sheds some much needed light on when employers can, and
cannot differentiate between employees under the Human Rights
Code with respect to employment benefits.
In Nelson, the employer implemented a "Child
Benefit Scheme" under which a full-time employee with more
than one year of service and dependent children could receive an
annual payment of $1,200 for each dependent child. The purpose of
the benefit program was to recognize that raising and educating
children was becoming increasingly costly for employees.
The complainant did not have any children and complained to the
Tribunal that the benefit program was discriminatory in denying him
this additional annual compensation.
In dismissing the complaint, the Tribunal confirmed that
differential treatment alone is not enough to establish
discrimination under the Human Rights Code.
For differential benefits to be discriminatory, the Tribunal
must first consider: (1) the purpose of the benefit (and, in
particular, the need the benefit is intended to address and whether
it is in harmony with the goals of human rights legislation); and
(2) whether the exclusion of certain employees from that benefit is
consistent with that purpose. If the exclusion is not related to
that purpose and is based on a prohibited ground of discrimination
(like family status), then the exclusion is discriminatory.
The Tribunal agreed with the employer in Nelson that
the purpose of the employer's benefit program was to assist
employees with increasing child-related costs and that the
complainant's exclusion from the benefit was justified because
he had not incurred the costs that the benefit was designed to
In rendering its decision, the Tribunal cited other case
examples where distinctions between groups of employees have also
been permitted, including:
the exclusion of non-biological
mothers and other parents from maternity benefits because maternity
benefits are targeted towards the health and well-being of pregnant
women and new biological mothers;
the exclusion of employees absent
from work from compensation tied to the performance of work;
the exclusion of employees absent
from work from an incentive bonus program.
The Tribunal also cited case examples where the distinctions
between groups were found to be discriminatory, including:
the exclusion of pregnant employees
from sickness benefits;
the exclusion of birth mothers from
the exclusion of single people from
travel benefits; and
the exclusion of employees over the
age of 61 from a retirement allowance.
Although each case will ultimately turn on its own facts (and
ought to be assessed in that fashion), employers can take comfort
in the fact that they can offer ameliorative employment benefits
when the purpose of those benefits is consistent with the spirit of
human rights legislation and the distinction that the employer
seeks to make between employees is related to that laudable
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.
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