In most Canadian jurisdictions, human rights legislation prohibits discrimination on the basis of "family status". Until recently, few cases were brought on this ground. Recent decisions across several jurisdictions make it clear that employers must pay attention to it or risk significant liability.
Employees have argued family status discrimination in two ways. The first is being treated differently because of who a family member is. In B v Ontario, the applicant was fired because his daughter had accused his brother, the employer's president, of molesting her. The Supreme Court accepted that he was fired because of his relationship to his daughter, which was discriminatory. This type of complaint is not very controversial.
Most recent cases deal with the second type: requests for accommodation because of family obligations. These are structured like disability accommodation requests. The argument is that, by making it harder for employees to meet their family obligations, employer policies discriminate against workers with families.
This creates real challenges for scheduling. Unlike most disability accommodation, in many workplaces the majority of employees may face these family pressures. Over roughly the past ten years the number of these cases has grown, but courts have not agreed on how to decide them. Three tests have emerged, from British Columbia, Ontario and the federal jurisdiction, each with different and vague definitions of employees' rights and employers' obligations.
The strict test: Campbell River v North Island Transition Society
In this British Columbia Court of Appeal case, the employee's son was, according to his doctor, "a very high needs child with a major psychiatric disorder." Her new shift schedule conflicted with caring for him after school.
The court held that to show discrimination, the employee must prove the employer's actions caused a "serious interference" with her ability to meet her family duties or obligations. Only a minority of parenting situations would qualify, and given the unique and challenging parenting duties involved, this was one of them. Under this test, ordinary parenting duties are not protected.
The broad test: Johnstone v Canadian Human Rights Commission
A Border Services Officer at Pearson International Airport with two small children complained that her unpredictable shift scheduling interfered with her ability to care for them.
The Canadian Human Rights Tribunal rejected the Campbell River test as too restrictive. It held that any action with "a substantial impact on a parent's ability to meet that obligation" was prima facie discriminatory. The shift scheduling severely affected her ability to meet her obligations, so it was a human rights violation.
Management-side lawyers were concerned: the test seemed to capture almost any employer policy that conflicted with parental responsibilities.
The middle ground: Devaney v ZRV Holdings Limited
The employee was the sole caregiver for his disabled mother. He disagreed with his employer about how much time he needed to spend in the office and began working from home. The employer insisted he attend in person, he refused, and his employment was eventually terminated.
The Human Rights Tribunal of Ontario adopted the Johnstone test with one major caveat: accommodation is available only where the family duty is "required" rather than a choice. That narrows the test slightly, but still lets a very broad range of employees claim family status protection.
The problem with these decisions
None of these decisions gives a clear, reliable definition of family status discrimination, so it is hard to know which family situations and obligations employers should watch for. The differences between the decisions make this worse: Campbell River, from the most influential court, was explicitly rejected in the later cases.
A legitimate fear with the broader approaches is "shift shopping": employees with family obligations could legally require employers to give them their preferred shifts over employees without those obligations, regardless of business needs.
An Alberta arbitration: SMS Equipment
This grievance arose in a unionized workplace in Fort McMurray, Alberta. The grievor, an apprentice welder and single mother of two young children, had been promoted into a position scheduled seven days on and seven days off, with rotating day and night shifts. After working one set of night shifts she asked for straight day shifts, saying childcare during night shifts was too expensive. Neither of her children's fathers provided childcare or child support, and she had not applied for a childcare subsidy.
The arbitrator adopted the broad Johnstone test. He found that requiring night shifts imposed a burden on her as a mother that other welders did not face, and therefore prevented her full participation in the workforce.
This should concern employers. She knew the shift schedule when she posted into the job, and challenged it within a week. The arbitrator also noted how unique her circumstances were: no family support, in a non-traditional job and schedule for a woman. These are not circumstances that would normally make an employer look at accommodation options.
What employers should do
- Approach any request for accommodation or shift changes because of family obligations with great caution.
- Don't treat these requests differently from disability claims.
- Document every interaction.
- Make sure your decisions take human rights into account, and get legal advice that protects you from potential claims.
- Take a proactive approach to these accommodations, so you keep the flexibility to schedule employees as your business requires.