What is the protected trait of “family status” and what are the risks for HR?
As Canadian families become increasingly diverse and the aging population pushes more employers into caring for elderly parents employers are likely to see more family status cases brought before the human rights tribunals – but what does it really mean for your company?
“In the face of changing ideas of family, employers and employees struggle to understand appropriate balance between family responsibilities and employment obligations,” Filion Wakely Thorup Angeletti associate Carla Nassar said.
A number of interesting family status cases in the last year show the importance of knowing what it’s all about, however, the cases don’t give a consistent message of what the protected ground entails.
Childcare
In Johnstone v Canada Border Services the border authority failed to accommodate an employee who requested day shifts to manage childcare responsibilities. The Federal Court of Canada upheld the Canadian Human Rights Tribunal that “family status” requires employers to provide accommodation for an employee’s childcare obligations. The Court determined that the necessary test was “whether the employment rule interferes with an employee’s ability to fulfill her substantial parental obligations in a realistic way.”
The court said the freedom to choose to become a parent was “so vital that it should not be constrained by the fear of discriminatory consequences… For the employer, this means assessing situations such as Ms. Johnstone’s on an individual basis and working together with her to create a workable solution that balances her parental obligations with her work opportunities, short of undue hardship.”
Eldercare
As people are living longer and much of the responsibility for caregiving is falling to their children, who are likely to be in their 50s and 60s at the peak of their career. A recent decision of the Human Rights Tribunal of Ontario confirmed that employees with eldercare responsibilities are also protected from discrimination on the basis of family status under the Ontario Human Rights Code.
In Devaney v. ZRV Holdings Limited the tribunal found the applicant had been discriminated against by the architecture firm where he had been employed for 27 years when he was terminated for taking time to care for his mother, who was disabled due to osteoporosis.
The Tribunal found the employer’s requirement that the employee attend at the office each day had an adverse impact on him because he was expected to be in the office during certain hours, irrespective of his elder care requirements.
The Tribunal found that the employer had breached its procedural and its substantive duty to accommodate.
Lessons for employers
“A key aspect of both the Johnstone and the Devaney decisions was the employer’s failure to meet its procedural obligations to the applicant,” Nassar said. “Once an employer becomes aware that an employee has needs related to family status, it has a proactive duty to make inquiries in order to determine whether it has a duty to accommodate those needs.”
Employers cannot rely on assumptions or impressions in determining whether or not an employee’s childcare or eldercare obligations can be accommodated. However, the cases also show that only an employee’s obligations are protected, not their preferences, so employers are not required to accommodate every request and are entitled to inquire into whether the employee has explored other options.
“Employers are likely to receive an increased number of requests for accommodation of childcare and eldercare obligations,” Nassar said. “Employers should be aware of their obligations and carefully assess any request for accommodation on an individual basis and should seek legal advice before denying any request for family status accommodation.”
