B.C. Appeal Court adopts broad definition of “family status” discrimination

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Most Canadian human rights legislation prohibits discrimination based on family status. Now, a decision of the British Columbia Court of Appeal has held that, in some circumstances, a work rule that seriously interferes with an employee’s family obligations can constitute family status discrimination.

The decision, Health Sciences Association of British Columbia v. Campbell River and North Island Transition Society (May 10, 2004) concerned a grievor who worked as a part-time child counselor in a transition house for abused women. The grievor was the mother of four children, one of whom suffered from Attention Deficit Hyperactivity Disorder and Tourette’s Syndrome. The child required clear routines in his sleeping and eating patterns and was capable of becoming violent if his routine was disrupted.

The grievor, who was hired in 1993, worked the 8:30 a.m. to 3:00 p.m. shift. In 2001, the employer advised the grievor that her hours would be changed to 11:30 a.m. to 6:00 p.m. because the number of children who required her services during her earlier shift had declined. The grievor worked the new hours for two weeks, but then asked the employer to reconsider its decision.

In support of her request, she submitted a letter from her child’s pediatrician, which stated that the child was “a very high needs child with a major psychiatric disorder” and that his need for consistent parenting was best served by his mother, particularly after school. The doctor reported that the grievor should be available to her son after school, something he considered to be “an extraordinarily important medical adjunct to [her son’s] ongoing management and progression in life”.

The employer refused the grievor’s request, and the grievor never returned to work. She was diagnosed by her physician as suffering from post traumatic stress disorder. The union advised the employer that it had a duty to accommodate the grievor by reinstating her previous working hours. The employer responded that it had no such duty under the province’s Human Rights Code. The union filed a grievance demanding compensation for the grievor’s lost salary and punitive damages, but did not seek the grievor’s reinstatement.

ARBITRATOR: “FAMILY STATUS” DOES NOT REFER TO CHILD CARE NEEDS

The grievance was denied at arbitration. The arbitrator concluded that, while the ground of “family status” includes the parent-child relationship and the principal characteristic of that relationship is the parent’s obligation to care for the child, “family status” did not extend to cover the various degrees of difficulty experienced by parents trying to balance work and family obligations:

    “[F]amily status in these circumstances deals with the status of parent and child, and not with the individual circumstances of a family’s needs, such as those concerning childcare arrangements. I therefore conclude that all parents that experience difficult childcare arrangements, as a result of their employment, are not a class or category that … the Human Rights Code seeks to protect. … [T]he words ‘family status’ refer to the status of being a parent per se, and not to the innumerable (and yet important) circumstances that arise for all families in regard to their daycare needs.”

COURT OF APPEAL: SERIOUS INTERFERENCE WITH SUBSTANTIAL FAMILY OBLIGATION IS DISCRIMINATION

The British Columbia Court of Appeal unanimously overruled the arbitrator’s decision. The Court noted that the arbitrator’s definition limiting “family status” to “the status of being a parent per se” would not address the serious negative impacts that some employers’ decisions might have on the family obligations of employees affected by them.

On the other hand, the Court did not accept the view put forward by the union, and expressed by the Canadian Human Rights Tribunal in Brown v. Department of National Revenue, that “family status” recognizes a parent’s right to strike a balance between family needs and employment requirements, coupled with a clear duty on the part of an employer to facilitate and accommodate that balance. In the Court’s view, such a definition had the potential to cause disruption in the workplace. Rather, the Court held, the proper definition fell between the two positions urged by the parties:

    “In the usual case where there is no bad faith on the part of the employer and no governing provision in the applicable collective agreement or employment contract, it seems to me that a prima facie case of discrimination is made out when a change in a term or condition of employment imposed by an employer results in a serious interference with a substantial parental or other family duty or obligation of the employee.”

The Court went on to note, however, that, in the vast majority of situations in which there is a conflict between a work requirement and a family obligation, it would be difficult to make out a prima facie case of discrimination. In the grievor’s case, however, a prima facie case was made out. The grievor’s son had a major psychological disorder and the grievor’s presence after school was vital to his well-being. This was a substantial family obligation and the employer’s decision to change the grievor’s work hours was a serious interference with the discharge of this obligation.

Accordingly, the Court held that the arbitrator had erred in not finding that there was a prima facie case of discrimination based on family status. The Court remitted to the arbitrator the issue of whether the employer could have accommodated the grievor.

In Our View

The Court, in this case, rejected the view that there is prima facie discrimination on the basis of family status whenever there is a conflict between a family obligation and a work requirement. However, it will not be easy to apply the Court’s definition of family status discrimination, if it becomes the law in Ontario. Employers faced with employee complaints would have to consider whether the family obligation in question was substantial, and whether the conflict created by the work requirement could be characterized as “serious interference”.

For further information, please contact Colleen Dunlop at (613) 940-2734.