This was the question recently considered by the Alberta Court of Queen’s Bench in an application for judicial review of an arbitrator’s decision. The case is SMS Equipment Inc v Communications, Energy and Paperworkers Union, Local 707 2015 ABQB 162 (CanLII) and the arbitrator’s award is Communications, Energy, and Paperworkers Union, Local 707 v SMS Equipment Inc. 2013 CanLII 71716 (AB GAA)
The arbitrator (and Court) turned its mind to the legal obligation of the employer to accommodate the grievor’s request to be permitted to work straight day shifts, rather than rotating day and night shifts, on the basis that rotating day and night shifts discriminate against her due to her status as a single mother.
In this case, the grievor worked seven days on followed by seven days off and rotated night and day shifts each seven-day tour of work. She was a single mother and the weeks she worked days, she payed for third-party childcare during the day while she was at work and slept at night while her children were sleeping. On the weeks she worked nights, she also paid for third-party childcare while she was at work, but during the days she looked after her children, resulting in her getting insufficient sleep. The grievor claimed that on the weeks she worked nights, it was too expensive to pay for additional childcare during the days and she was not comfortable having her children in the care of a third-party for such a long period of time. She asked her employer to accommodate her by permitting her to work exclusively day shifts but it refused her request. She filed a grievance.
The employer and union disagreed about whether “family status” included the duties and responsibilities of childcare, and whether the union had established a prima facie case discrimination. The arbitrator concluded, following a review of the positions of the parties and the case law, that “family status” in the Alberta Human Rights Act included childcare responsibilities because, in the words of Johnstone “It is within the scope of (the) ordinary meaning of the words; it is in accord with decisions in related human rights and labour forums; it is in keeping with the jurisprudence; and it is consistent with the objects of the Act.”
Having so concluded, the arbitrator went on to consider whether the union had established a prima facie case of discrimination. The employer and the union, not surprisingly, disagreed on the test for establishing a prima facie case when family status is the relied upon ground of discrimination.
There are competing tests.
On one end of the debate are those decisions that treat the protected ground of family status the same as any other ground of discrimination. These cases, including Hoyt and Canadian National Railway, 2006 CHRT 33 (CanLII) conclude that a prima facie case of discrimination will be established if the complainant can show that he or she has been adversely affected or disadvantaged based upon her family status by an employer rule or policy.
On the other end of the spectrum are those decisions, including Health Sciences Assn of British Columbia v Campbell River and North Island Transition Society, 2004 BCCA 260 (CanLII) that treat discrimination claims on the basis of family status as being different from other discrimination allegations because of the “potential to cause disruption and great mischief in the workplace” if the more liberal test were applied. These cases require that the employee show that “a change in a term or condition of employment imposed by an employer results in serious interference with a substantial parental or other family duty or obligation of the employee.” The difficulties must “lay outside the experience of the vast majority of people.” Furthermore, some decisions have held that the employee must also prove they have taken all reasonable steps to “self-accommodate” before a prima facie case of discrimination may be established.
The arbitrator preferred the Hoyt line of cases but went on to say that it was not necessary for him to resolve the debate between the competing lines of cases since, no matter how you viewed the matter, in his view, the grievor’s parenting responsibilities were “extraordinary” and the adverse impact on her of the employer’s rule regarding shifts was “serious” and her obligation to support her family was “significant”. The arbitrator also held that “self-accommodation” is not “properly the subject of analysis in determining whether a prima facie case of discrimination is established”. He went on to say that he did not have to “definitively decide this in this case, as this is not a case about self-accommodation”
In other words, the arbitrator held, after an exhaustive and quite excellent review of the case law, that regardless of which test was used, a prima facie case of discrimination was established.
The employer sought judicial review of the award on a variety of grounds, all of which were rejected by the Court who upheld the decision of Arbitrator Kanee. In doing so, the Court agreed with his conclusion that “family status” under the Alberta Human Rights Act included childcare obligations. Furthermore, the Court agreed with the arbitrator as to the prima facie test of discrimination where family status was the cited ground. Specifically, the Court rejected the Campbell River line of cases in favour of the approach in Hoyt whereby the employee need only show that:
- He or she has a characteristic that is protected from discrimination;
- The employee has experienced an adverse impact; and
- The complainant must show that the protected characteristic was a factor in the adverse impact.
The Court upheld the arbitrator’s award and dismissed the employer’s application for judicial review.
It is important to remember that this is an Alberta case. The arbitrator and Court concluded that an employee makes out a prima facie case of discrimination on the basis of family status on the same standard as in any other case, that is has the complainant shown that he or she has been adversely affected or disadvantaged based upon her family status by an employer rule or policy? If so, the test is met. Further, the court confirmed that self-accommodation is a legitimate consideration in the analysis. As noted above, the Ontario cases seem to approach the matter slightly differently and, as such, the debate remains in our province.