From childcare to eldercare, ‘family status’ is no longer a straightforward issue. With rapidly changing definitions, HR policy is struggling to keep pace. Employment lawyer Gita Anand, with Miller Thomson LLP, provides a briefing
Human rights claims of discrimination on the ground of “family status” have been on the rise in the past few years, and the scope of the claims have been expanding from beyond who one’s family includes, to work accommodation for childcare and other family-care obligations. As our workplaces have grown more demanding in terms of hours and performance, and circumstances may dictate that both parents need to work, the law has had to balance employee interests against fairness to employers in light of freely negotiated contractual terms. To date, courts and tribunals have not balanced these interests consistently.
Discrimination on the basis of family status has been prohibited in most jurisdictions in Canada for several years. Despite the similarity in various statutes, there is very little clarity in the laws of various jurisdictions as to what family status means or what constitutes discrimination on that basis. In Ontario, family status is defined narrowly as “the status of being in a parent and child relationship.” In Alberta, it is broadly defined as “the status of being related to another person by blood, marriage or adoption.” Moreover, it is only relatively recently that adjudicators have been required to interpret the scope of an employer’s duty to accommodate employees on the basis of family status. In essence, the majority of cases determine the issue of whether a parental obligation “trumps” a work obligation.
The law on this issue is unsettled. There are three approaches at present, and it will be difficult for employers to ascertain what their obligations are until the Supreme Court
of Canada weighs in and reconciles these three lines of cases.
The “narrow” approach, which emerged from British Columbia, arose in the context of a change in an employee’s hours of work, which resulted in her inability to care for her disabled son. The employer did not accommodate the changes she required. The B.C. court determined that a prima facie case of discrimination occurs when a change in a term of employment imposed by the employer results in a “serious interference” with a substantial parental or other family duty or obligation. The Court of Appeal set a very high bar for finding prima facie discrimination in childcare situations.
The “broad” approach arises from a line of cases in the Federal Court, which has expressly rejected the British Columbia approach, and essentially states that a prima facie case of discrimination may arise wherever the employment rule interferes with an employee’s ability to fulfill her substantial parental obligations in any realistic way.
Third, the “middle” approach, which arose in Ontario, amalgamates the other two approaches, recognizing the need to balance the competing family and work obligations, while maintaining flexibility. This approach suggests that changes are often initiated from the employee rather than from the employer’s policy, and both should be protected. That is, employees should make some effort at self-accommodation before claiming discrimination. However, employees should not be asked to make unreasonable choices in all of the circumstances before discrimination is found. A recent Ontario case, which dealt with accommodation of an employee for eldercare responsibilities, confirmed this approach, adding that there exists the requirement to establish that the family commitment is a necessity, not a preference.
THE DUTY TO ACCOMMODATE
Once an employee has established a claim of discrimination, the employer is obliged to accommodate the employee’s request, unless the employer can prove that the discriminatory action is a bona fide occupational requirement or to do so would result in undue hardship. While each situation must be reviewed individually, the duty to accommodate requires the employer to satisfy both a procedural and substantive aspect. The procedural duty refers to the obligation to make meaningful inquiries, and assess the appropriate accommodation of the request. The substantive aspect refers to the actual form of accommodation provided to the employee.
Most employers appear to fail on the procedural aspect of the duty, in practice.
WHAT SHOULD HRDS DO?
When confronted with a request from a single mother for time off to care for a sick child, or a request for a reduced work week from an only child to look after an elderly parent, what should an employer do?
As a general comment, it is important for HR leaders to ensure they have consistent policies and processes in place so employees get the same considerations regardless of role and status. Review your organization’s policies to make sure all your frontline managers know what steps they should take to consider individual requests.
When dealing with individual requests, first carefully gather all the facts surrounding each request for accommodation. Ask questions. Document all steps taken. Take the request seriously.
Second, collaborate with the employee to explore solutions. The person making the request is obliged to cooperate in this process. Remember that “undue” hardship does not mean “no hardship” at all. There is an expectation that the employer may have to endure some inconvenience or make some sacrifices in the accommodation process.
Third, don’t speculate or rely on unsupported conclusions or beliefs. For example, thinking that “morale will be affected” as a reason to deny a request to accommodate without any objective evidence will not likely be accepted by adjudicators to support a defence of undue hardship.
Finally, plan ahead. Expect to receive accommodation requests particularly if changes to working conditions are imposed. Initiate policies and processes that not only demonstrate flexibility in finding accommodation, but also offer employees detail and clarity in how to seek accommodation and what is expected of them in the process. Remember that the search for accommodation must be on an individual basis, which recognizes the unique circumstances of each case.
KEY HRD TAKEAWAYS
- Family status is getting more attention as Gen X, the “sandwich generation,” struggles to balance work with caring for children and parents.
- Be wary of denying requests without substantiated reasons. In Johnstone v. Canada (Border Services), the court found some employees were being accommodated and others were not, and rewarded significant damages for the inconsistency.
- You don’t have to accommodate every request, but you do need to consider each situation independently and on its own merits. Document every step of the process as backup.
Gita Anand, Partner, Miller Thomson LLP, specializing in labour and employment law. firstname.lastname@example.org