The Sandwich’ed Employee: Top 5 Employer FAQs About “Family Status” Discrimination
September 21, 2017
By Lucie LaBoissonnière, at McInnes Cooper
More and more employees are finding themselves in the “sandwich generation”, squeezed between childcare on one side, and eldercare on the other. And that squeeze extends to their employers:
The increase in employees struggling to juggle the competing demands of their employers and those of their families has resulted in an increase in family status discrimination claims, forcing courts and arbitrators to balance the needs of sandwiched employees against freedom of contract and the needs of employers. Yet the legal test for family status discrimination in employment is a moving target.
Here are the answers to five of employers’ most frequently asked questions about workplace discrimination on the basis of family status.
- What is “family status”?
“Family status” is a protected ground under human rights laws of all Canadian provinces and territories (N.B. added “family status”, as well as “gender identity or expression”, as a protected ground under the N.B. Human Rights Act in May 2017; Quebec’s “civil status” encompasses any form of family ties or affinity with another person) and federally. However, some don’t define “family status” at all, for example N.B. and B.C. When they do, the definition varies (between provinces for provincially-regulated employers, and federally for federally-regulated employers). For example, human rights legislation in P.E.I. and Ontario define “family status” as, “the status of being in a parent and child relationship”; that of N.L. defines it expansively as, “the status of being in a parent and child relationship and … “child” includes a stepchild and an adopted child and “parent” includes a step-parent and an adoptive parent”. Employers should look to the specific legislation in the provinces in which they operate for the specific requirements when developing policies and making decisions regarding accommodation.
- What does the “family status” ground protect?
This is a developing area, so the scope of the protection of “family status” is evolving. However, it seems clear it includes the protection of both childcare and eldercare obligations:
Childcare Obligations. Courts and arbitrators have confirmed that the prohibited ground of discrimination based on “family status” includes discrimination based on a parent’s childcare obligations, so an employer is prohibited from discriminating against an employee based on their childcare obligations.
Parent or “Eldercare” Obligations. Similarly, those decisions dealing with “family status” discrimination in the context of eldercare confirm that care of a parent is also protected under “family status”.
How a Family is Formed. Human rights legislation doesn’t necessarily make what constitutes a “parent” clear, and thus whether “family status” under human rights legislation includes how someone became a parent. However, at least one decision suggests it does. In Adekayode v. Halifax (Regional Municipality), a collective agreement gave adoptive, but not biological, parents a top-up when they went on parental leave. The employee, a biological parent, was denied top-up benefits and lodged a human rights complaint alleging discrimination on the basis of family status. The N.S. Human Rights Commission Board of Inquiry agreed, deciding “family status” under the N.S. human rights legislation includes the nature of the parent/child relationship.
- What’s the test for discrimination on the basis of family status?
Until recently, the test employees must meet to succeed in a discrimination claim based on “family status” resulting from childcare obligations, and in turn the aspects of such care employers must accommodate, seemed clear. However, two recent decisions of the Ontario Human Rights Tribunal have thrown that into doubt.
In 2014 and 2015, two federal court of appeal decisions (Canada (Attorney General) v. Johnstone and Canadian National Railway Company v. Seeley) and one Ontario Court of Appeal decision (Partridge v. Botony Dental Corporation) set out and applied a four-part test employees must meet to succeed in a family status discrimination claim in the context of childcare:
- Care and supervision. The employee must prove a child is actually under their care or supervision such that their failure to meet the child’s needs will engage the employee’s legal responsibility.
- Legal Responsibility. The employee must prove that the child isn’t of an age where they can reasonably be expected to care for themself during the parent’s work hours, and that the childcare need flows from a legal obligation, as opposed to personal family choices. Thus not all family commitments necessarily trigger the employer’s duty to accommodate; for example, it’s not triggered by requests like: a transfer to be closer to family, attending a child’s events or voluntary activities, or to spend more time with children when there’s an alternate childcare arrangement.
- Reasonable Efforts.The employee has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and none is reasonably accessible: neither they nor the other parent (or guardian) can meet their legal childcare obligations while continuing to work, and an alternative arrangement isn’t reasonably accessible to them such to meet their work needs.
- Non-trivial Interference.The workplace rule at issue interferes with the fulfillment of the childcare obligation in more than trivial or insubstantial way.
At that point, there hadn’t been a decision dealing with family status discrimination complaint in the context of an employee’s eldercare obligations. But this – and potentially the test – changed in 2017: two Ontario Human Rights Tribunal decisions, Misetich v. Value Village Stores Inc. and subsequently Ananda v. Humber College Institute of Technology & Advanced Learning, dealt with that issue – and flat-out rejected the notion that the test for establishing discrimination on the basis of family status differs from the test in the case of any other protected ground for several reasons, including:
- The test’s “legal obligation” element is hard to apply in the context of eldercare.
- The test also sets the bar higher than that for other discrimination grounds, such as the requirement to prove the complainant’s “legal obligation” is engaged, and to demonstrate “self-accomod[ation]” (which also conflates the tests for discrimination and accommodation).
- A different test for family status discrimination creates legal inconsistency and uncertainty.
Instead, the Tribunal decided the test to establish discrimination is the same for every protected ground – including family status: the complainant must prove: membership in a protected group under the human rights legislation; adverse treatment; and their membership in the group was a factor in that adverse treatment. The Tribunal went on to set out the applicable analysis for family status discrimination in employment:
- “Real Disadvantage”. The employee must prove the negative impact on a family need results in “real disadvantage” to the parent/child relationship and attendant responsibilities, and/or to the employee’s work (and reiterating the requirement it enunciated in its 2012 decision in Devaney v. ZRV Holdings Limited).
- Context. Assessment of the impact is contextual, and might include other supports available to the complainant – but not whether they can “self-accommodate”.
- Accommodation & Cooperation. If the complainant proves discrimination, the burden shifts to the employer to prove it can’t accommodate the employee to the point of undue hardship. The employee’s co-operation, including providing the employer with information about their family needs and collaboration on solutions, is part of this stage.
Notably, in both cases, the Tribunal concluded the employee had not proven discrimination on the basis of family status.
The resulting divide between a human rights tribunal and two courts is a theoretically interesting legal debate – but leaves employers in a practical quandary: what’s the test? It’s likely this question will take some time to settle. In the meantime, employers might be well-served by taking a conservative approach to family status accommodation requests.
- What are the penalties for discriminating on the basis of “family status”?
The role of human rights tribunals is to remedy a case of discrimination, and they have broad authority to fashion a solution that’s appropriate to make the complainant employee “whole”. For example, human rights tribunals can do one or more of the following:
Monetary. Make monetary awards to employees to compensate them for the distress and humiliation of being discriminated against and to compensate them for any loss of income that resulted from the discrimination.
Cease & Rectify. Require employers to stop the discriminatory conduct and rectify the discrimination against the employee generally, or in a particular way, like granting the employee a particular accommodation.
Act. Require employers to implement training, policies or procedures to address the discriminatory conduct.
The remedy the N.S. Human Rights Tribunal Board of Inquiry fashioned in a 2015 decision concluding family status includes how a family is formed (Adekayode v. Halifax (Regional Municipality) illustrates the breadth of a human rights tribunal’s powers to make an employee whole. The Tribunal concluded the employer discriminated against the employee on the basis of family status when it gave top-up benefits for parental leave to adoptive parents but denied them to biological parents, depriving the employee of money and time with his child – and awarded him a paid parental leave with top-up even though the child was no longer an infant.
- How do employers accommodate “family status”?
Given “family status” is a protected ground, the employer has a duty to accommodate. But the question is how far does the accommodation duty extend? There’s no “standard” answer to requests for accommodation on the basis of “family status” (or on any other basis). As with any request for accommodation of any ground protected under human rights laws, employers must consider each individually and, where appropriate, accommodate the employee to the point of undue hardship.
The general guidelines applicable to all accommodation requests also apply to those based on family status, and will help employers understand their rights and obligations:
Two-Way Street. Accommodation requests come up as a result of employer-initiated workplace changes, or changes to the personal circumstances of an employee or their family. An employer considering changing its operations should consider how those changes might impact its workforce and, where possible, give employees advance notice of any changes so they have the opportunity to make necessary arrangements or adjustments.
The Right to Know. On the flip side, as in all accommodation requests, the employee has a duty to cooperate in the accommodation process. In the context of family status, this includes sharing information with the employer about the relevant needs to allow the employer to identify – and assess – potential accommodation options and working cooperatively to find a reasonable (not a perfect) accommodation solution.
Living Tree. The duty to accommodate isn’t limitless, but it is an ongoing process. The accommodation obligation begins when an employer is, or ought to be, aware of the need for accommodation, and might take many forms as an employee’s family status and attendant obligations evolve over time. The duty to accommodate only ends when the employment relationship ends, or the employer can establish that its accommodation efforts have reached the point of undue hardship.
One Size Does Not Fit All. Even if an employer has standardized procedures for evaluating requests and implementing accommodation, it ought not have standardized solutions: employers must consider the individual circumstances of the employee requesting accommodation and work with that employee to determine an accommodation that’s appropriate in the particular case.
Write it Down. Keeping thorough and accurate records of the entire accommodation process, including the employee’s and the employer’s steps, is important as an employee’s accommodation needs evolve and, if necessary, can provide evidence in response to a human rights complaint for failure to accommodate.
Practically, in the case of accommodation on the basis of family status, practically, a worksite transfer or scheduling modifications often adequately addresses the request. For example:
- Changing an employee’s existing schedule.
- Maintaining an employee’s existing schedule.
- Allowing the employee to work specific shifts (e.g., only days, only nights, only mornings, and so on).
- Limiting the number of hours an employee works in a day.
This is an update of our article, The Sandwich Generation: 5 Employer FAQs About “Family Status” Accommodation, published on October 6, 2015.
Please contact your McInnes Cooper lawyer or any member of the Labour & Employment Team @ McInnes Cooper to discuss this topic or any other legal issue.
McInnes Cooper has prepared this document for information only; it is not intended to be legal advice. You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.
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