When Work and Family Collide – Family Status Discrimination

Which of these situations engage family status discrimination laws:

1. a senior architect who wants to work from home regularly to care for his elderly mother;
2. the local lumber mill’s summer student hiring program which reserves 90% of its spots for the children of its employees;
3. border services officer working rotating day and night shifts who wants to work fixed day shifts so that she can arrange for childcare; or
4. a clerk who cannot work night shift due to his wife’s blindness?

If you answered “all of them”, you are correct.[1]

Regardless of the jurisdiction you are working in, most human rights legislation provides a remedy for employees who face discrimination due to their family status.  While some jurisdictions have defined that term, in British Columbia, the Yukon, and under federal law “family status” is not defined.  However, it has been generally found to include both the status of being in a particular family relationship (e.g. child-parent, spouse, sibling) and having the responsibilities associated with that relationship as well as the status of being related to a particular person (e.g. being Devon’s son or Ashita’s brother-in-law).

In recent years, courts and tribunals have struggled with how to draw the line between discriminatory and non-discriminatory behavior in family status cases.  In British Columbia, our Court of Appeal took a restrictive approach, suggesting in a child care case that an employer’s action would have to “seriously” interfere with an individual’s parenting responsibilities before it would be considered discrimination.  Other jurisdictions have said the test should be no different than it is for any other type of discrimination – that it is enough to show that there was interference.

The broader test found in other jurisdictions is increasingly in favour, and it may yet come to B.C.  It was most recently affirmed in Attorney General of Canada v. Fiona Ann Johnstone and the Canadian Human Rights Commission, 2013 FC 113.  This case involved parents who both worked full-time (37.5 hours /week) for the Canadian Border Services Agency (CBSA) on rotating day and night shifts.  After each of their children were born, the mother asked to be put on a fixed day shift to ease their child care arrangements.  The evidence was that it would be difficult, if not impossible, to find child care for the children if she continued on the same shift she had been on previously.

CBSA offered Ms. Johnstone 34 hours per week on a part-time, fixed-shift schedule.  At that time, fixed-shifts were only allowed for part-time employees. All employees who worked full-time were required to work rotating shifts.  Even though Ms. Johnstone would only be short 3.5 hours per week, part-time work meant that her income was not pensionable and she might lose out on opportunities available only to full-time staff.  As a result, she wanted full-time status.  She finally agreed to work 30 hours per week part-time, and filed a human rights complaint.

The human rights tribunal found that CBSA had discriminated against Ms. Johnstone by not allowing her to work a fixed-shift on a full-time basis, and the federal court upheld that decision.  It also affirmed the broader discrimination test, saying that the first question to be answered in family status cases is whether the employment rule or condition “interferes with an employee’s ability to meet a substantial parental obligation”.  The court specifically rejected B.C.’s more stringent approach, which required employees to show that there was a “substantial” interference with their parental obligations.

With this broader test gaining increasing support from the courts, we may be entering a new era in which employers will be increasingly involved in employees’ family lives.  If you have any questions about how these decisions may affect your business, please don’t hesitate to get in touch with our employment lawyer.