By Sarah Forte

In the era of the “sandwich generation,” many employees are balancing work with significant family obligations – caring for children, aging parents, or both. Many employers seeking to retain valued employees have been considering and implementing temporary or even permanent flexible work arrangements in an effort to assist employees in balancing their work and family responsibilities. Until recently, in our province, making such accommodations has been a purely voluntary act by employers. However, recent decisions by the BC Human Rights Tribunal suggest that the law may be changing to require employers to accommodate needs created by an employee’s “family status”.

The prohibition against discrimination in employment on the basis of family status is not new. In Section 13 of the Human Rights Code, family status has long been included as one of the prohibited grounds for discrimination in employment.  The term family status is not defined in the Code, but encompasses one’s status as parent or child, among other relationships. Over the years, BC’s Human Rights Tribunal has considered numerous complaints by parents who claim that their employer (or former employer) failed to accommodate their family status, for example their daycare schedule or other childcare obligations. BC Courts and the BC Human Rights Tribunal have not generally been receptive to these complaints, holding that a complaint of family status discrimination will not succeed in the usual case of an employee experiencing a conflict between work and family obligations.

There is a recognition that many working parents have to make childcare arrangements, and the approach of our Courts and the Tribunal seems to be that making appropriate childcare arrangements is a responsibility to be borne solely by the parent, and an employer is entitled to insist on a particular work schedule, even if it conflicts with childcare obligations. The law in BC has required employees to demonstrate that there has been a “serious interference with a substantial parental or other family duty” to prove discrimination on the basis of family status. Under this test, successful complaints have been made out, for example, where an employee had a child with a disability, and medical evidence demonstrated that due to his unique needs, the child required after-school care from the parent specifically.

In applying this high threshold, BC has been out of step with the rest of the country, and judges in other provinces have criticized and expressly rejected the BC approach as too narrow and limiting. Two recent decisions by the BC Human Rights Tribunal suggest that the Tribunal is looking for ways around this high threshold, finding exceptions to the “serious interference with a substantial parental… duty” test.

In a decision issued in March of this year, the Tribunal found that an employer had discriminated against an employee who was the mother of three children on the basis of her family status when it unilaterally removed her contractually-promised flexible work schedule following her maternity leave (Brown v. PML and Wightman (No. 4), 2010 BCHRT 93). In the second decision, issued in August, the Tribunal found that an employee who was a single mother had suffered discrimination on the basis of family status when the employer terminated her employment based on assumptions made about her ability to work on account of her status as a single mother (Cavanaugh v. Sea to Sky Hotel and Mohajer (No. 2), 2010 BCHRT 209). In both decisions, while not expressly rejecting the higher threshold (which the Tribunal cannot do as it is bound to follow the decision of the BC Court of Appeal in which this high threshold was set), the Tribunal undertook a creative analysis to find that in these particular cases, the “serious interference with a substantial parental duty” test did not apply.

What does this mean for employers? Prior to these recent developments, I would have advised employers that they did not have a legal obligation to accommodate employees’ childcare or family obligations, unless there was something usual or particularly demanding about the employee’s family situation. Although this is still the state of the law until the Court of Appeal reconsiders the issue, if the identified trend continues and the Tribunal continues to find creative ways around this high threshold, employers may have to be prepared to demonstrate that they have accommodated an employee’s family status to the point of undue hardship. This could include accommodation of employees who request time off to care for ailing parents, or employees who request adjustments to their work schedules around childcare arrangements.

Employers must consider each request on its own unique facts, but proactive programs, including flexible work arrangements and on-site or employer-sponsored daycare, may limit exposure to human rights complaints on the basis of family status.

Sara Forte is a lawyer at Hamilton Howell, and advises both employers and employees in all aspects of labour and employment law, including human rights. Sara is also a mother of two, balancing her family responsibilities with her practice of law.

PeopleTalk: Summer 2011