Is This the New Standard For Family Status Discrimination?

February 2017

Article by: Ryan Copeland

Previously printed in the LexisNexis Labour Notes Newsletter.

It is now accepted that “family status” protections under human rights legislation cover persons who are in a parent-child relationship, as well as the obligations which flow from that relationship, such as child or elder care.

However, decision-makers have grappled with the scope of these protections due to a concern that not every conflict between family and work obligations should be treated as discrimination contrary to human rights law.

For example, in the context of child care, the Federal Court of Appeal has held that a claimant can only prove family status discrimination if:

a. the child is under his or her care and supervision;

b. the child care obligation at issue engages the individual’s legal responsibility for that child, as opposed to personal choice;

c. the individual has made reasonable efforts to meet those child care obligations through reasonable alternative solutions, and no such alternative solution is reasonably accessible; and

d. the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the child care obligation.

This approach has been adopted in most Canadian jurisdictions. However, the B.C. Court of Appeal has adopted an even more restrictive approach by holding that family status discrimination in employment only occurs when an employer imposes a work requirement that results in “a serious interference with a substantial parental or other family duty or obligation”.

Elder care has been viewed in even narrower terms than child care. In that context, it has been held that family status protections are only triggered where there is a conflict between the work requirement and the adult child’s obligation to provide the “necessaries of life” to his or her elderly parent.

These approaches have often resulted in dismissed claims on the threshold issue of whether the complainant has made out a case of prima facie discrimination, and thus do not engage any analysis of whether the employer could accommodate the situation short of undue hardship.

In Misetich v. Value Village Stores Inc., [2016] O.H.R.T.D. No. 1253, the Tribunal criticized these approaches, and the decisions in which they have resulted, on the basis that they impose a more rigorous test for discrimination than is applied to other protected grounds, such as race, age or disability.

The facts of the Misetich case are fairly straightforward.  In January 2013, the employer proposed that the employee move from a physical role to a retail position to accommodate her physical restrictions.  As a result, the employee would have had to work days, evenings and weekends.  The employee responded by suggesting that her new schedule created hardship because it prevented her from preparing evening meals for her elderly mother.

Over the next 10 months, the employer requested medical proof from the employee regarding her mother’s care, asking questions including: Was the employee the primary caregiver for her parent?  What was the care the employee’s mother required?  Was the care essential to the mother’s health and safety?  Were there alternative means to provide this care?

The employee baldly asserted that the change in her hours discriminated against her on the basis of her family status. She provided no information to the employer about the nature of her elder care responsibilities.  She simply said she needed to care for her 86-year old mother and prepare evening meals for her.  Not having received the information it required, and in light of the employee’s failure to report to work, the employer terminated her employment for job abandonment.

The Tribunal found that the employer’s demand for more information and its eventual termination decision were not discriminatory. The Tribunal’s view was that the employer’s requests were reasonable and the employee had not provided sufficient information to establish a real disadvantage to her family relationship.  On the latter point, it noted that the employee could have prepared evening meals just as she had prepared lunch meals previously – i.e. in advance of going to work.  Given no finding of discrimination, there was no need to consider whether the employer had accommodated the employee to the point of undue hardship.

In arriving at this conclusion, the Tribunal created a new framework that is more closely aligned with discrimination analyses used in the context of other protected grounds.

According to the Tribunal, in order to establish family status discrimination, an employee will have to do more than simply establish a negative impact on a family need. Instead, the negative impact must result in real disadvantage to the parent-child relationship and the responsibilities which flow from that relationship.  The impact of the impugned rule is to be assessed contextually and may include consideration of the other supports available to the complainant.  The Tribunal reasoned that these supports are relevant to assessing both the family-related need and the impact of the impugned rule on that need.

According to the Tribunal, only after a finding of discrimination is made should a decision-maker examine whether the employee has cooperated in the accommodation process, including by providing the employer with sufficient information relating to his or her family need and working to identify possible solutions to resolve the family/work conflict.

There is certainly appeal to the Tribunal’s efforts to align the approach to family status discrimination and the general approach in other discrimination frameworks. However, there likely remains some difficulty in applying the “available supports” and “real disadvantage” analysis to family status complaints, as it may be too easy to conflate or confuse that approach with the self-accommodation and minimal interference thresholds demanded by previous decision-makers.

Following Misetich, employers should consider doing the following:

a. If an employee raises a conflict between work and a family responsibility, an employer can ask for information concerning the nature and extent of the family obligation. This may include requests for medical or other information to support or confirm the family obligation, and may also include such questions as whether the employee is the primary or only caregiver.

b. Further, the employer can ask the employee about the measures the employee has implemented, or may be able to implement, to avoid or minimize the conflict.

c. Once it receives this information, an employer should consider whether the work rule is discriminatory and, if so, whether it is impossible to accommodate the employee’s circumstances to the point of undue hardship. Since the law is not yet uniform between jurisdictions, and may indeed evolve, employers are well advised to obtain up-to-date legal advice on which framework to apply to these questions.