Is it Discriminatory to Exclude Childless Employees From a Child-Focused Benefit Payment?

August 2016

In Nelson v. Bodwell High School (No. 2), 2016 BCHRT 75 a single, male teacher with no children claimed that he was discriminated against on the basis of his family status because he was not eligible for his employer’s Child Benefit Scheme (“CBS”).  The CBS provided an annual payment of $1,200 per dependent child to each full time employee with at least one year of continuing service.  Mr. Nelson did not have any children so he did not qualify for any payment under the CBS.

Bodwell High School is a co-educational independent school in North Vancouver. In 2010, Bodwell initiated the CBS which provided child benefit and education grants in recognition of the fact that raising and educating children is becoming more expensive.  Mr. Nelson conceded that it was expensive to raise a child (an expense he did not have) but felt belittled because he did not earn as much as his colleagues with children, even though some of them had been with the school for a shorter period of time.  He said the CBS was unfair and that he had been humiliated and harassed by his co-workers when he tried to raise the issue with them.  Mr. Nelson did not want the CBS to be stopped; he just wanted to receive a payment too.

The Tribunal’s Decision

The Tribunal accepted that employee benefit plans such as relocation allowances, parental benefits, and flights home to see family were becoming more prevalent. In considering whether it is discriminatory for an employer to provide such benefits to some employees and not others, the Tribunal will consider:

1.The purpose of the benefit; and

2.Whether the exclusion of certain employees is in accordance with that purpose. If not, and the exclusion is based on a prohibited ground, then the exclusion is discriminatory.

The purpose of a benefit will be determined in relation to the need that the benefit seeks to address and not to the group of people it targets. Once the benefit’s purpose is established, the exclusion of employees must be “scrupulously” measured against that purpose.  Where exclusions on the basis of prohibited grounds are not explained or justified completely by the benefit’s purpose, then they will be discriminatory.

Although there was evidence that Mr. Nelson’s entitlement to the CBS was directly related to his family status as a single man without children, the Tribunal stated that it is well-established in Canadian law that differential treatment alone is not sufficient to establish discrimination. The Tribunal found that Mr. Nelson’s characteristics of being single, young, male and childless were not normally ones that attracted discrimination, and that it needed to keep the purposes of the Human Rights Code in mind in reaching its decision.

The Tribunal determined that the CBS was adopted for the clear purpose of helping its employees meet the increasing costs of raising and educating children. It then measured that purpose against the exclusion of non-parents.  Given that the amount of the payment was based on the number of dependent children each employee had (and therefore directly tied to how those costs were incurred), and that the payment was made to all employees with children regardless of their job duties, gender, or the structure of the employee’s family suggested it was targeted directly at the costs associated with raising a child.

Mr. Nelson was excluded from the benefit because he had no children, but he also did not have to incur the additional expenses related to child-rearing that the benefit was designed to offset. Distinguishing between employees based on whether they incurred child-rearing expenses was not discriminatory. Mr. Nelson had not established a prima facie case of discrimination and his complaint was dismissed.

Advice for Employers

When considering implementing benefits that target certain employees to the exclusion of others, employers should take care to ensure that the distinction is legitimately related to the purpose of the benefit.

While the denial of a child-centred benefit to Mr. Nelson was a fairly straight-forward application of the test described above, not all situations are quite as clear. In contrast to Bodwell’s CBS benefits which were found to be appropriate, various employer benefit policies have been found to be discriminatory, including excluding single people from travel benefits, excluding birth mothers from parental benefits or sickness benefits, and providing company-paid travel to married employees only.

Employers need to bear in mind the need that a benefit seeks to address and tailor the benefit accordingly.  We recommend obtaining advice in order to appropriately structure benefit programs to ensure that they do not inadvertently discriminate against those employees that are not specifically targeted for the benefit.