BC Human Rights Tribunal Confirms Test For Family Status Discrimination
Previously printed in the LexisNexis Labour Notes Newsletter.
In Kenworthy v. Brewers Distributor (No. 2), 2016 BCHRT 54 (“Kenworthy”), the BC Human Rights Tribunal (the “Tribunal”) considered the issue of family status discrimination in the context of childcare obligations. Kenworthy is a helpful update on this tricky topic and is of particular interest due to the various approaches that courts and tribunals across Canada have adopted in defining “family status” obligations in human rights legislation.
Briefly, the facts of the case were as follows. The complainant worked in the respondent’s warehouse. The warehouse ran three shifts per day (day, afternoon and night) and each shift was 9.5 hours in duration. The complainant was employed as a casual worker and worked an average of two days per week. Casual employees were expected to be available for all of their scheduled shifts.
The complainant and employer entered into a series of accommodation agreements whereby the complainant was relieved from some of the normal working hours and scheduled for day shifts only. The complainant was required to make best efforts to have childcare arrangements that would enable her to attend at work on a regular basis.
As a result of several workplace incidents, the complainant alleged that she had been subjected to discrimination on the basis of sex and family status as well as sexual harassment. The family status allegations centred on her being scheduled for several night shifts and missing a training opportunity due to being unable to arrange childcare, and the employer’s refusal to further extend her accommodation agreement and its insistence that she be treated like all other non-accommodated employees with respect to hours of work.
The Tribunal dismissed the family status complaint on a preliminary basis as having no reasonable prospect of success. Although the complainant could establish that she suffered some level of inconvenience as a result of the employer’s actions, this did not rise to the level of interference that resulted in discrimination under the BC Human Rights Code.
In BC, the test for family status discrimination was confirmed by the BC Court of Appeal in Health Sciences Association of British Columbia v. Campbell River and North Island Transition Society, 2004 BCCA 260 (“Campbell River”). In order for an employee to establish a family obligation that requires accommodation by his or her employer, the employee must demonstrate that a condition of his or her employment creates “serious interference with a substantial parental or other family duty”.
This test has not been widely accepted in other Canadian provinces and federally and, instead, a less onerous test for the employee to meet has been adopted.
Despite the changing Canadian landscape on this issue, in Kenworthy, the Tribunal applied the “serious interference” test from Campbell River and concluded that the complaint had no reasonable prospect of success. The Tribunal determined that in order to establish a prima facie case of discrimination on the basis of family status, the complainant must show that she is a parent with particular parental obligations, that the employer has treated her adversely with respect to her employment, and that there is a connection between her parental obligations and the adverse treatment. The complainant in Kenworthy failed to do so and her complaint was therefore dismissed.
Takeaways for Employers
1. Employers in BC have an obligation to accommodate an employee’s childcare obligations where a workplace policy, rule or standard imposes upon the employee “serious interference with a substantial parental or other family duty”.
2. Employers should treat each request for accommodation on a case-by-case basis and be willing to accommodate if possible.
3. Written accommodation agreements can be an effective way to clearly identify the scope of an accommodation and, if used, should be revisited regularly and updated if appropriate.
4. Employees must be engaged in the accommodation process and try to find childcare arrangements that are compatible with work demands.