Family status as a protected right under human rights legislation is something that is receiving a great deal of recent attention, primarily because it is an area of human rights law that is not yet settled.
We spoke to Andrew Schafer, partner at Norton Rose Fulbright, who explained to us the intricacies of dealing with family status – and revealed how different jurisdictions in Canada have different legal tests which means that the province you’re in can affect your rights.
“The interesting part of family status, where lawyers are concerned, is that we still don’t have one unified test for family status cases – we currently have three different approaches across Canada, meaning the province where the employee is located will dictate their entitlements and in turn will dictate what employers can and should be asking for from employees.”
The first test is from BC and, as Schafer explains, is an employer-friendly approach.
“Essentially, in order to say you’ve been discriminated against in regards to family status, you have to show that a term of employment results in a serious interference with a substantial parental or familial obligation. Therefore, in BC it is not enough to show that a parent has obligations to a child or parent. Those obligations must be substantial and the interference with them must be substantial.
The next, Schafer tells us, affects the Federal sphere – as in any employees who work in Federal roles and are protected by the Human Rights Code.
“This test is comprised of four parts. One; the employee has to show the child (or parent) is under their care and supervision. Two; that the obligation engages the employee’s legal responsibility for that child or parent – as opposed to simply a personal choice. Three; that the employee has made reasonable efforts to meet those obligations through alternative solutions but has been unable to. Four; that the workplace rule in question interferes in a manner that is more than trivial.”
Finally, the last approach comes out of Ontario. Schafer told us that this approach is most in line with how human rights tribunals approach the other grounds of discrimination (ie: age, disability, etc.).
“It advocated treating family status in the same way employers would treat any other ground,” he added. “In Ontario, the employee has to show that they are a member of a protected group, and in family status that would be a parent of a child or someone who has obligations to their parent. Employees also have to prove that they have suffered adverse treatment, and that the family status was a factor in that adverse treatment.”
To find out more about these issues, register for HRD Canada’s Employment Law Masterclass – in Vancouver on March 5th. To read more about the exciting speaker line up and agenda topics here.