B.C. Human Rights Tribunal Reaffirms Requirements of Campbell River Test in Recent Family Status Discrimination Case
June 17, 2020
Article by:
Gregory J. Heywood
In Ziegler v. Pacific Blue Cross (No. 2), 2020 BCHRT 125, the B.C. Human Rights Tribunal dismissed a complaint made by a former employee claiming the employer had failed to accommodate her childcare needs. The case represents one of the first instances of the Tribunal applying the “Campbell River test” for discrimination in employment on the basis of family status following the confirmation of that test in Envirocon Environmental Services, ULC v. Suen, 2019 BCCA 46 (“Envirocon”), and offers valuable insight into what the Tribunal considers to be a “serious interference with a substantial parental obligation”.
Background
The complainant, Nicole Ziegler alleged that her former employer Pacific Blue Cross (“PBC”) failed to accommodate her childcare needs after introducing changes to her work schedule in January 2017. Ms. Ziegler objected to working the last shift in the rotation because she said it would not give her sufficient time to pick up her child from daycare before it closed and sought an individualized accommodation from her employer.
In response, PBC advised Ms. Ziegler that the schedule changes were well within standard business hours, that it was not in a position to accommodate employee shift preferences at the time and that everyone was expected to move to the new shift rotation at the end of the month. However, PBC provided Ms. Ziegler with additional time to secure alternate childcare arrangements. Rather than exploring alternate daycare options, Ms. Ziegler instead opted to resign and seek and obtain alternate employment.
Hearing
At the hearing, Ms. Ziegler argued that PBC’s decision not to accommodate her shift preference, in combination with the difficulties it presented for her in ensuring that her child could be picked up from daycare on time represented a serious interference with her parental rights. Importantly, Ms .Ziegler indicated in her evidence that she was unwilling to consider home-based daycare as a possible alternative due to a pre-conceived idea that “corporate” daycares were the only daycares which could provide suitable care to meet her standards.
PBC relied on Campbell River and Envirocon and argued that its revised scheduling requirements did not constitute a serious interference with a substantial parental obligation. In particular, PBC asserted that all Ms. Ziegler could establish was that she was a parent who had a conflict between a work requirement and a parental preference. In these circumstances, PBC argued Ms. Ziegler had no reasonable prospect of establishing the “something more” required by Campbell River.
Decision
In its decision, the Tribunal dismissed Ms. Ziegler’s complaint, finding that it was clear, in both Campbell River and Envirocon, that on these facts no serious interference with a substantial parental duty or obligation took place.
The Tribunal found that Ms. Ziegler failed to meet the burden of proving that PBC’s decision created an interference with a substantial parental duty or obligation due in part to her failure to explore alternate daycare arrangements which would have allowed her to work the altered shifts. Instead, Ms. Ziegler put her energies into “fighting a battle to get [her employer] to provide her with an exemption from their revised work schedules…and alternatively a search for alternate employment” (para 66). Further, Ms. Ziegler unwillingness to consider other childcare options was also a significant factor as it indicated a failure on her part to consider any alternatives to her preferred childcare arrangement.
Takeaways
This is an important case as it confirms that an employer does not need to accommodate every request for flexibility as it relates to childcare obligations, that the ruling in Envirocon that Campbell River remains law in British Columbia and that employer decisions that may impact ordinary parental duties do not meet the test for family status discrimination.
Greg Heywood and Tamara Navaratnam were co-counsel for Pacific Blue Cross in Ziegler v. Pacific Blue Cross (No. 2), 2020 BCHRT 125., and are the authors of this article with contribution from Roper Greyell articling student, Janna Crown. They are employment, labour and workplace human rights lawyers at the Vancouver-based boutique firm of Roper Greyell LLP – Employment and Labour Lawyers.
While every effort has been made to ensure accuracy in this article, you are urged to seek specific advice on matters of concern and not to rely solely on what is contained herein. The article is for general information purposes only and does not constitute legal advice.
June 17, 2020
In Ziegler v. Pacific Blue Cross (No. 2), 2020 BCHRT 125, the B.C. Human Rights Tribunal dismissed a complaint made by a former employee claiming the employer had failed to accommodate her childcare needs. The case represents one of the first instances of the Tribunal applying the “Campbell River test” for discrimination in employment on the basis of family status following the confirmation of that test in Envirocon Environmental Services, ULC v. Suen, 2019 BCCA 46 (“Envirocon”), and offers valuable insight into what the Tribunal considers to be a “serious interference with a substantial parental obligation”.
Background
The complainant, Nicole Ziegler alleged that her former employer Pacific Blue Cross (“PBC”) failed to accommodate her childcare needs after introducing changes to her work schedule in January 2017. Ms. Ziegler objected to working the last shift in the rotation because she said it would not give her sufficient time to pick up her child from daycare before it closed and sought an individualized accommodation from her employer.
In response, PBC advised Ms. Ziegler that the schedule changes were well within standard business hours, that it was not in a position to accommodate employee shift preferences at the time and that everyone was expected to move to the new shift rotation at the end of the month. However, PBC provided Ms. Ziegler with additional time to secure alternate childcare arrangements. Rather than exploring alternate daycare options, Ms. Ziegler instead opted to resign and seek and obtain alternate employment.
Hearing
At the hearing, Ms. Ziegler argued that PBC’s decision not to accommodate her shift preference, in combination with the difficulties it presented for her in ensuring that her child could be picked up from daycare on time represented a serious interference with her parental rights. Importantly, Ms .Ziegler indicated in her evidence that she was unwilling to consider home-based daycare as a possible alternative due to a pre-conceived idea that “corporate” daycares were the only daycares which could provide suitable care to meet her standards.
PBC relied on Campbell River and Envirocon and argued that its revised scheduling requirements did not constitute a serious interference with a substantial parental obligation. In particular, PBC asserted that all Ms. Ziegler could establish was that she was a parent who had a conflict between a work requirement and a parental preference. In these circumstances, PBC argued Ms. Ziegler had no reasonable prospect of establishing the “something more” required by Campbell River.
Decision
In its decision, the Tribunal dismissed Ms. Ziegler’s complaint, finding that it was clear, in both Campbell River and Envirocon, that on these facts no serious interference with a substantial parental duty or obligation took place.
The Tribunal found that Ms. Ziegler failed to meet the burden of proving that PBC’s decision created an interference with a substantial parental duty or obligation due in part to her failure to explore alternate daycare arrangements which would have allowed her to work the altered shifts. Instead, Ms. Ziegler put her energies into “fighting a battle to get [her employer] to provide her with an exemption from their revised work schedules…and alternatively a search for alternate employment” (para 66). Further, Ms. Ziegler unwillingness to consider other childcare options was also a significant factor as it indicated a failure on her part to consider any alternatives to her preferred childcare arrangement.
Takeaways
This is an important case as it confirms that an employer does not need to accommodate every request for flexibility as it relates to childcare obligations, that the ruling in Envirocon that Campbell River remains law in British Columbia and that employer decisions that may impact ordinary parental duties do not meet the test for family status discrimination.
Greg Heywood and Tamara Navaratnam were co-counsel for Pacific Blue Cross in Ziegler v. Pacific Blue Cross (No. 2), 2020 BCHRT 125., and are the authors of this article with contribution from Roper Greyell articling student, Janna Crown. They are employment, labour and workplace human rights lawyers at the Vancouver-based boutique firm of Roper Greyell LLP – Employment and Labour Lawyers.
While every effort has been made to ensure accuracy in this article, you are urged to seek specific advice on matters of concern and not to rely solely on what is contained herein. The article is for general information purposes only and does not constitute legal advice.