Both the Nova Scotia Human Rights Act, as well as the Canadian Human Rights Act (which applies to federally regulated entities) explicitly protect family status as a prohibited ground of discrimination. Family status was, for many years, the "poor cousin" of better known prohibited grounds of discrimination such as sex, disability, or race, but several recent high profile legal decisions are clarifying employers' duties in this area. The Nova Scotia Human Rights Act, like most other similar legislation across Canada, defines family status as the status of being in a parent-child relationship. Case law has taken this to be inclusive of caring for children, as well as caring for elderly parents. As most employees have children and/or aging parents, this protected ground is an important area for employers to be aware of their evolving rights and obligations.
Where an employee can demonstrate that they are being discriminated against on the basis of a prohibited ground of discrimination, such as child care issues which affect their ability to work, the employer will have a duty to accommodate the employee. The duty to accommodate under human rights legislation continues until it is impossible for the employer to accommodate without incurring "undue hardship". This means the employer is expected to bear some hardship. What constitutes undue hardship is fact-specific, and will be different in every situation.
In the past several years across Canada there have been a number of high profile claims of discrimination on the basis of family status which have been successful at various levels of adjudication. Two involved child care issues and one dealt with caring for an ill parent.
These cases have confirmed that where an employee with child or elder care issues can show they are experiencing differential treatment at work as a result of their family-based issues, employers have not only a duty to accommodate, but may indeed be under an obligation to initiate a conversation with the employee about accommodating their needs. The cases also suggest that employers should carefully review their relevant policies to ensure that they are current and are being implemented consistently and fairly across employees. In two of the recent cases the Court/Tribunal took a dim view of employers who appeared to have ignored their own written policies in dealing with an employee's need for accommodation on the basis of family status. As a starting premise, employees have a duty to try to work out their own family care issues. Every employee must make reasonable attempts to deal with their own family needs; but in a situation where an employee is experiencing significant difficulty they may approach their employer for accommodation. If they do so, the employer is obliged to carefully consider the request, and implement accommodation(s) to address the issues where possible
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