Establishing discrimination on the grounds of family status is already an ambiguous matter which leans in favour of employees – now, a recent case in Alberta has made the waters all the more murky, warns one employment lawyer.
decision confirms the shift across Canada towards providing a broader level of protection for employees with childcare obligations,” says Cassels Brock lawyer Caitlin Russell. “And, unfortunately, adds some uncertainty to the proper test required to establish discrimination in these cases.”
Russell is referring to the recently settled case between SMS Equipment Inc. and Communications, Energy and Paperworkers Union, in which the Court of Queens’s Bench of Alberta upheld an arbitration award finding that an employee had been discriminated against on the basis of family status.
Renee Cahill-Saunders was required to work seven days on and seven days off with rotating day and night shifts while employed as a welder for SMS Equipment Inc. in Fort McMurray, Alberta.
After returning from maternity leave, Saunders requested her shift be changed to straight day shifts on the basis that it was too expensive to pay for childcare both during the nights while she worked and during the days while she slept.
Along with the request, single mother-of-two Saunders informed SMS that she had spoken with another employee who has happy to work exclusively night shifts.
SMS denied the request and the union brought a grievance on the grounds that the employer's refusal was discriminatory on the basis of family status. An arbitrator ruled in favour of Saunders and said SMS must accommodate her needs to work solely day-shifts.
The Court confirmed the arbitrator’s decision and said a three-pronged approach could be used to test discrimination:
- The complainant must have a characteristic that is protected from discrimination
- The complainant must have experienced an adverse impact
- The complainant must be able to show that the protected characteristic was a factor in the adverse impact.
Although the SMS
decision was made under the Alberta Human Rights Act
, labour lawyer Russell says employers all across Canada should take note.
“Employers should be aware that this decision creates a potentially more lenient test for individuals to rely on in establishing discrimination on the basis of family status,” she warns.
“Employers should ensure that their accommodation policies incorporate ‘family status’ in a manner that includes a reasonable consideration of childcare needs,” advises Russell.
“When receiving requests for accommodation, employers must consider each request on its own merits,” she added.
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