• Five Things to Know about Discrimination Based on Family Status
  • October 8, 2010 | Author: Jennifer L. Ronalds
  • Law Firm: Stewart McKelvey - Moncton Office
  • 1.  Family status goes beyond parents caring for young children.
    Family status has been defined as “practices or attitudes which have the effect of limiting the conditions of employment of, or the employment opportunities available to, employees on the basis of a characteristic relating to their family”.

    A variety of family caregiver relationships fit underneath the family status umbrella including parents taking care of young children (including by adoption, fostering and step-parenting), grown children carrying for aging parents, and individuals caring for relatives with disabilities.

    2.  There is no bright line between regular family responsibilities and requests that are protected by the family status ground.
    Most employees are balancing family and work obligations at any given time.  One of the challenges for employers is recognizing when employees are entitled to accommodation to assist them in meeting both sets of obligations.   Similar to disability cases involving ac-commodation issues, there is a two-step analysis for family status discrimination cases in the employment context:

    1. Has the employee established a prima facie case coming within the protected ground of family status?
    2. If so, has the employer accommodated the employee to the point of undue hardship? 

    There are two differing approaches in the case law as to how to assess if there is a prima facie case for family status.  One approach, generally applied in the federal jurisdiction, was recently confirmed in Rajotte v. President of the Canadian Border Services Agency et al. which requires evidence to demonstrate that the complainant is a parent/caregiver, that s/he has duties and obligations as a member of society, and further that she is a parent/caregiver incurring those duties and obligations.  As a consequence of those duties and obligations, combined with the respondent’s conduct, the complainant must prove she was unable to participate equally and fully in employment.

    If the employee establishes these elements, the analysis proceeds to the employer’s duty to accommodate.  This approach has been criticised in other decisions as being overly broad and capturing virtually all circumstances where an employee’s family obligations conflict with their work obligations.

    Therefore, in I.B.E.W., Local 636 v. Power Stream Inc. Arbitrator Jesin concluded that the appropriate test is whether a change in circumstances (whether employer-initiated work changes or changes to family circumstances such as divorce or illness) creates serious in-terference with a  substantial parental obligation.

    In Power Stream, four employees faced consequences because of a schedule change that included a negative impact on employees’ ability to attend their children’s extracurricular activities and interfered with a carefully crafted custody arrangement. Arbitrator Jesin held that not every conflict between a work obligation and a parental obligation gives rise to finding of discrimination that must be accommodated by the employer. Only one of the four employees established that the change in the work schedule caused serious interference with his parental obligations, namely his custody arrangement.

    In Alberta (Solicitor General Department) v. Alberta Union of Provincial Employees, Arbitra-tor Ponak recently followed the Power Stream decision and also held that family status dis-crimination cannot be interpreted as arising in any situation in which a work requirement results in some interference, no matter how minimal, with a parental obligation.  Arbitrator Ponak held that to establish a prima facie case, there must have been a serious interference with the grievor’s parental obligations.

    In that case, the grievor was a single mother working shift work in a correctional facility.  Following the reassignment of another employee, she and her co-workers were required to take turns covering the night shift.   The grievor had not previously worked night shifts and found it difficult to arrange childcare during the nights for her 11-year-old son.  She had primary custody of her son and her ex-husband was unable to care for him during the night shifts because he worked a similar shift.  Her son was a healthy 11-year-old boy who did not have any special needs.  While relatives would spend the night with the boy or the boy would attend at their homes, the grievor felt that her employer had an obligation to ac-commodate childcare arrangements and a failure to do so was discrimination on the basis of family status.  Her grievance was dismissed because she did not establish a prima facie case.

    In McDonald v. Mid-Huron Roofing the employee was fired after he left work for a family medical emergency and did not return in the time required by his employer.  The employee’s wife had just experienced a difficult pregnancy during which she was very ill and continued to experience significant pain after the premature birth of their child.  The employee’s wife had to stop working sooner than expected, the couple had few resources and no extended family in the immediate area to assist with emergencies.   The employee requested to leave work to take his 12-day-old son to a doctor’s appointment because his wife had to go to the emergency room for her pain. These circumstances, all of which the employer was aware, paired with the employer’s refusal to give the employee the necessary time away from work, established a prima facie case of discrimination based on family status.  In those circums-tances, the employer ought to have accommodated the employee.
    Regardless of the judicial approach adopted, it is clear that when assessing a request, consideration must be given to the employee’s individual circumstances.  Hard and fast rules such as, “no accommodation for childcare needs”, should be avoided.

    3. Employees have a role to play in balancing their work and family responsibilities
    An important part of assessing an employee’s needs vis-à-vis their family status is recog-nizing that not all of the onus is on the employer to find the perfect solution.

    Parents/caregivers must take some steps on their own to ensure that they can fulfill both their parental obligations and their work commitments.  In Alberta Union of Provincial Em-ployees, Arbitrator Ponak held that part of any analysis of a family status discrimination claim is examining the steps taken by the employee to balance the family and worklife re-sponsibilities.  As noted above, the first step in the analysis is to demonstrate a prima facie case of discrimination.  Arbitrator Ponak held that employees bear the onus of providing sufficient evidence of the absence of reasonable alternatives for care.  In that case the grievor had an obligation to diligently explore reasonable alternatives to being home at with her son.  To conclude otherwise would mean that no single parent could ever be assigned to night shifts or late evening shifts.

    In Rawleigh v. Canada Safeway Limited the Human Rights Panel of Alberta also gave con-sideration to the other alternatives available to the complainant.  The complainant worked as a grocery store clerk and sought accommodation in the form of being exempt from the night shift rotation.  The complainant’s wife had a degenerative eye disease that precluded her from caring for their three small children alone at night.   The Panel concluded that based on evidence, having relatives stay with the wife on short notice and for significant duration (4 weeks at a time) was not reasonable and the cost of night time assistance exceeded the complainant’s salary.

    4.  Make decisions based on evidence, not assumptions
    As with any potential accommodation situation, employers must gather the relevant facts and information before reaching any conclusions about whether accommodation is required and the type of any such accommodation.

    In Rajotte the complainant had previously turned down a work opportunity with one of the individual respondents because its hours conflicted with her child care obligations.   The respondent assumed that because one job had been turned down for those reasons that the complainant was not interested in subsequent arrangements with similar requirements.  This was despite the fact that in the interim, the complainant had advised the respondent that she was interested in other positions with similar requirements (working occasional overtime and flexible hours of work), applied for other positions and advised the respondent that she wanted to work with the individual respondent.

    The Tribunal concluded that relying on the complainant’s previous childcare obligations as the basis not to further consider her for a new position was not reasonable in the circums-tances.  Rather, the supervisor ought to have approached the complainant and made inqui-ries as to her availability to work overtime and any possible accommodations that could be made.  The employer was held to have discriminated on the basis of family status and failed to accommodate the complainant to the point of undue hardship.  As a remedy the employer was ordered to assess the complainant’s needs for a accommodation in relation to her family obligations.

    Similarly, in Mid-Huron Roofing, the employer demanded that the employee return to work within 20 minutes or be fired.  When the employee failed to do so, he was fired.  The Ontario Human Rights Tribunal held that the employer failed to ask the employee about his needs but rather concluded that no more than 20 minutes accommodation would be granted. 

    5. Flexible workplace policies and rules that may be modified for individual circumstances will assist employers.
    Workplace policies, including those that address parental leaves, hours of work and work schedules, requesting time off and leaves of absence, are an important tool for any workplace.  However, as with other forms of accommodation, employers who rigidly apply those policies and rules without considering individual circumstances, may be violating their duty to accommodate.

    For example, in Johnstone v. Canada Border Services Agency, the employer acknowledged that it had an unwritten policy that did not allow employees to have static shifts (non-rotating) with full-time hours if the reason for the request was childcare responsibilities.  If an employee requested such accommodation they could only receive part-time hours, up to a maximum of 34 hours per week.  However, it had granted employees with accommodation requests for other reasons (i.e., religious or medical reasons) static shifts with full-time hours.  The employer said that having children was a personal choice and accommodating individuals with full-time hours would open the floodgates. However, from the time the complaint was filed in 2002 until the hearing, the employer had only received two other requests.

    The Tribunal recognized that it was legitimate for a 24/7 operation such as the Canada Bor-der Services Agency to have rotating shifts and to have a general policy with respect to employee work schedules.  However, they failed to establish that accommodating this em-ployee’s family status would be onerous or otherwise cause undue hardship.

    Having flexible and inclusive policies, and trained management who can assess individual requests and circumstances, will assist employers in meeting their human rights obliga-tions, both with respect to family status issues as well as other protected grounds.