I spoke a couple of weeks ago at the Human Resources Professional Association of Ontario HR Law Conference on the topic of discrimination on the basis of family status.
The duty to accommodate is triggered when a complainant establishes a prima facie case of discrimination on a prohibited ground. This is the threshold issue and, in most cases, is not a heavy burden to meet.
However, when it comes to family status discrimination, a number of courts and administrative tribunals (and arbitrators) have held that a different prima facie standard is called for. The leading case is Campbell River out of the British Columbia Court of Appeal. The Campbell River test is:
Whether particular conduct does or does not amount to prima facie discrimination on the basis of family status will depend on the circumstances of each case. In the usual case where there is no bad faith on the part of the employer and no governing provision in the applicable collective agreement or employment contract, it seems to me 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. I think that in the vast majority of situations in which there is a conflict between a work requirement and a family obligation it would be difficult to make out a prima facie case.
The BC Human Rights Tribunal in Miller v. BCTF (No. 2) echoed the common refrain in the Campbell River line of cases:
In the employment context, almost every work-related requirement has the potential to interfere, to some degree, with an employee’s family obligations. Yet there are obvious societal and economic reasons why employers must be able to require their employees to work, and to do so at certain times and in certain places, regardless of the fact that employees might have conflicting childcare or other family responsibilities. Something more is necessary, in that context, to establish discrimination, and the Court of Appeal defined that something more as “a serious interference with a substantial parental or other family duty or obligation”. This is a way of defining, in that context, what is necessary to establish discrimination in the substantive or purposive sense.
More recently, an arbitrator in Alberta (Solicitor General) and A.U.P.E. (Jungwirth) commented on the need for a "different" test for showing discrimination on the basis of family status:
Absent express public policy, such as that enacted with respect to maternity leave, family status discrimination cannot possibly be interpreted as arising in any situation in which a work requirement results in some interference, no matter how minimal, with a parental obligation. In order to work, all parents must take some steps on their own to ensure that they can fulfill both their parental obligations and their work commitments. Part of any examination of whether a prima facie case has been established for family status discrimination must therefore include an analysis of the steps taken by the employee him or herself to balance their family and worklife responsibilities.
The concern is that setting the prima facie bar too low will allow every employer policy to come under challenge because it somehow interferes with an employees' family obligations. It's the oft heard "floodgates" argument.
This approach has been criticized in many quarters. In fact, as Greg Gowe points this out by bringing our attention to three (3) cases released last week by the Canadian Human Rights Tribunal (Whyte v. Canadian National Railway, Seeley v. Canadian National Railway Richards v. Canadian National Railway). The Tribunal discussed its earlier decision in Hoyt where it was noted that:
With respect, I do not agree with the [British Columbia Court of Appeal's] analysis. Human rights codes, because of their status as 'fundamental law,' must be interpreted liberally so that they may better fulfill their objectives (Ontario Human Rights Commission and O'Malley v. Simpson-Sears Ltd., 1985 CanLII 18 (S.C.C.), [1985] 2 S.C.R. 536 at p. 547, Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), 1987 CanLII 109 (S.C.C.), [1987] 1 S.C.R. 1114 at pp. 1134-1136; Robichaud v. Canada (Treasury Board) 1987 CanLII 73 (S.C.C.), [1987] 2 S.C.R. 84 at pp. 89-90). It would, in my view, be inappropriate to select out one prohibited ground of discrimination for a more restrictive definition.
The Tribunal then goes on to further the criticism by noting:
In addition to the compelling logic of the Tribunal's decision in Hoyt for not following the approach in Campbell River, this Tribunal concludes that the approach suggested in that case imposes an additional burden on the Complainant by suggesting that the protected ground of family status includes proof of a "serious interference with a substantial parental or other family duty or obligation" and that this is inconsistent with the purpose of the CHRA. As the Supreme Court of Canada made it clear in B. v. Ontario (Human Rights Commission), 2002 SCC 66 (CanLII), [2002] 3 S.C.R. 403, at para. 56, it is not appropriate, when interpreting human rights statutes, to impose additional burdens.
So there you have it - if you're an employer you argue Campbell River and the cases that have followed it. If you're an employee you argue that the tried and true prima facie case applies and that it would be inappropriate to establish a higher onus where family status discrimination is alleged.
