“No discrimination on the basis of family status” by Carmela Allevato

Posted on December 17, 2014

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I had occasion to participate on a panel at the Bargaining in the Broader Public Sector 2014 Conference organized by Lancaster House. The panel, “What’s on the Bargaining Table: Emerging Issues, Creative Solutions”, canvassed a number of topics including pensions, health and welfare benefits and work-life balance. The obligation to accommodate employees on the basis of family status came up under the topic of work-life balance. The leading case in British Columbia is Health Sciences Association v.Campbell River and North Island Transition Society available on Canlii at: http://www.canlii.org/en/bc/bcca/doc/2004/2004bcca260/2004bcca260.pdf .

In that case the court ruled 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 test in Campbell River has been rejected by the Federal Court of Appeal in CNR v. Seeley also available at http://www.canlii.org/en/ca/fca/doc/2014/2014fca111/2014fca111.pdf .

In Seeley, the court found that, “in order to make out a prima facie case where an alleged workplace discrimination on the prohibited ground of family status resulting from a childcare obligation is alleged, the individual advancing the claim must show (i) that a child is under his or her care and supervision; (ii) that the childcare obligation at issue engages the individual’s legal responsibility for that child, as opposed to a personal choice; (iii) that he or she has made reasonable efforts to meet that childcare obligation through reasonable alternative solutions, and that no such alternative solution is reasonably accessible; and (iv) that the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation.”

Note that the approach is not limited to childcare obligations, but any obligation to any family member to whom there is a legal responsibility.

British Columbia is an outlier when it comes to protection from discrimination on the basis of family status and sooner or later the issue will make its way again to the Court of Appeal. There a panel of five judges can reverse a previous decision. If not, the issue is sure to end up at the Supreme Court of Canada. Regardless of the state of the law, accommodating family obligations, no matter how substantial or “trivial”, is an important issue in the workplace that both employers and unions are required to try to address in a progressive and effective manner at the bargaining table.

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