Canadian Employment Law Today

Canadian HR Reporter, 2020 4 CASE IN POINT: FAMILY STATUS ACCOMMODATION A patchwork of family status accommodation requirements A look at the tests for accommodation in British Columbia and Ontario BY RHONDA LEVY AND BARRY KURETZKY M illennials are now the demograph- ic that makes up most of Canada's workforce, and many want their jobs to fit with their lives and the lives of their family members. It is important for employers to adapt to their needs, and fam - ily-friendly employers will be better able to attract and retain employees. Moreover, we are seeing a trend to modernize Canadian employment legislation, including the inclu- sion in some statutes of the right to request flexible work arrangements. Employers that demonstrate a desire to meet the family de- mands of their employees demonstrate that they are in sync with this legislative trend. When employees complain that they have been discriminated against by their employer on the basis of their family status, the em - ployer's image may be tainted as being fam- ily unfriendly, even when the complaint is unfounded. Although human rights statutes across Canada prohibit family status dis- crimination, there are generally fewer family status complaints when compared to other grounds of discrimination. Most family status complaints relate to discrimination in em- ployment, but even these complaints are un- common. Nonetheless, employers in Canada should be familiar with the unsettled legal ap- proach to family status discrimination. Adju- dicators use different tests to analyze whether an employer has a duty to accommodate fam- ily status and the standard is more stringent in some jurisdictions than in others. Although it is clear which tests apply to federally regulated employers and employ- ers in British Columbia and Alberta, there is significant confusion in other jurisdictions where new tests have emerged creating a "family status" landscape filled with incon- sistencies. This uncertainty leaves employers, especially those that have operations in mul- tiple Canadian jurisdictions, facing a confus- ing landscape. British Columbia: The Campbell River test In the spring of 2019, the B.C. Court of Appeal applied the high burden test for establish- ing family status discrimination — set out in Health Sciences Assoc. of B.C. v. Campbell River and North Island Transition Society — in its de- cision Envirocon Environmental Services ULC v. Suen. The Supreme Court of Canada later dis- missed an application for leave to appeal from the decision, confirming that the Campbell Riv- er test remains good law in British Columbia. The Campbell River test sets out that a pri- ma facie case of discrimination on the basis of family status is made when: • There is a change in a term or condition of employment imposed by an employer • The change results in a serious interference with a substantial parental or other family duty or obligation of the employee. In Suen, the employee was dismissed for cause when he refused an assignment to man - age a project in Manitoba for between eight and 10 weeks because he wanted to stay close to home to assist his wife in caring for their four-month-old baby. The Court of Appeal concluded that the employee could not sat - isfy the restrictive second step of the Campbell River test, as "he is no different from the vast majority of parents" and there was nothing in his materials to suggest that his child would not be well cared for in his absence. In contrast, the employee in Campbell Riv - er was able to establish a prima facie case of discrimination on the basis of family status. Her son had specific needs due to severe behavioral issues, and when her employer changed her work shift, she could not care for him after school. The court viewed this as a serious interference with a substantial parental obligation. The contrast between the outcomes in Suen and Campbell River suggests that, in British Columbia, employees must demonstrate that a change in the terms or conditions of employment seriously interferes with a parental or other family duty that is more substantial than regular duties faced by the vast majority of others in their position, and that this interference may result in the child or other family member being made vulnerable in their absence. In British Columbia, it is not enough for the employee to have a desire to perform the parental or other family duty, there must be a need to perform the duty and no one else available to perform it. Federal and others outside B.C. and Alberta: The Johnstone test A four-part test for establishing a prima facie case of family status discrimination in the workplace, set out by the Federal Court of Appeal in Canada (Attorney General) v. John - stone, is applied consistently in the federal jurisdiction and often in jurisdictions out- side British Columbia and Alberta. The employee, Johnstone, and her hus- band were both full-time employees work- ing unpredictable rotating shift schedules. Prior to returning from her first maternity leave, Johnstone requested static shifts on a full-time basis. The employer, however, de- nied this request, stating it had no legal duty to accommodate her childcare responsibili- ties. The employer offered Johnstone static shifts for 34 hours per week, which would result in her being treated as a part-time em- ployee with fewer employment benefits and pension entitlements than a full-time em- ployee. Johnstone filed a complaint alleging discrimination on the basis of family status. The Federal Court of Appeal declined to adopt the test set out in Campbell Riv- er because that test establishes a higher threshold for a finding of prima facie discrimination on the ground of family status than for other prohibited grounds. Instead, the court established the following four-part test, which is less onerous because it does not require the interference to be "serious" and the parental or other family duty or obligation to be "substantial." The individual advancing the claim must In B.C., regular duties faced by the majority of other parents do not warrant special accommodation. The nature of family status accommodation is frequently evolving in Canada and it may be difficult to keep track of what elements employers are obligated to accommodate. This is the first in a two-part series exploring the various tests being used to establish family status discrimination in Canada and what employers must understand. First, we look at the tests established in British Columbia and Ontario. Next issue, the evolution of family status accommodation in Alberta and the bottom line for employers will be discussed. BACKGROUND

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