Significant Changes to the Test for Family Status Discrimination in BC
In a recent article, Robert Smithson addresses the recent BC Human Rights Tribunal v. Gibraltar Mines Ltd. case that reinforces the employer's need to accommodate an employee's change in family circumstances.
Robert Smithson, whose no-nonsense employment law articles are some of the best, provides his perspective on accommodating the increased breadth of “family status” human rights claims.
The original version of this article can be found on Smithson Employment Law Corporation.
A few years ago, I wrote an article – Honey, I Shrunk the Family (Status)! – addressing the concept of “family status” discrimination in the province of B.C. In particular, that article discussed the courts’ tendency to restrict the breadth of “family status” human rights claims.
That period of relative freedom for employers (to disregard their employees’ family circumstances) has just come to a screeching halt, courtesy of B.C.’s Court of Appeal. This is a development which employers will surely regret once its effects on the workplace gradually become apparent.
What Does “Family Status” Mean?
Since “family status” was added to B.C.’s Human Rights Code as a protected ground, the question of what constitutes family status discrimination has seemed to challenge h.r. practitioners, lawyers, Tribunal members, and judges alike. According to the Court of Appeal, B.C.’s legislature “purposefully left the ambit of family status discrimination to be developed by the courts through case law.”
In the majority of instances, it seems “family status” has meant an obligation to provide care for a child or an infirm member of the family unit. It’s the clash of this family obligation (and everything that comes with it) with employers’ need and desire to have people come to work and perform the duties of their employment which is at the heart of most “family status” discrimination cases.
In effect, the employee says to the employer, “My family situation prevents me from attending work and performing my duties as I have in the past, and I want you to accommodate my circumstances.”
Until now, employers have benefited from the requirement that a “family status” discrimination claim could only be successful if the employer had changed a term or condition of the employment relationship. If the employee’s difficult family situation was not the result of the employer making a change, the employee’s discrimination claim would fail.
B.C.’s Court of Appeal Weighs In - Again
Although our Court of Appeal had previously upheld the requirement noted above, its recent decision, British Columbia (Human Rights Tribunal) v. Gibraltar Mines Ltd., has eliminated that requirement.
The Court summarized the factual situation as follows.
“The complainant in the underlying human rights complaint is Lisa Harvey. Ms. Harvey and her spouse were employed with Gibraltar, which operates a mine about 60 kilometers north of Williams Lake, British Columbia. The mine operates 24 hours per day, seven days per week.
Ms. Harvey was a journeyman welder at the time of the complaint; her spouse was a journeyman electrician. Both were members of the union. When Ms. Harvey became pregnant, she and her spouse worked the same 12-hour shifts, but they sometimes worked different night shifts.
After the birth of their first child and close to the end of her parental leave, Ms. Harvey sought a workplace accommodation to change her and her spouse’s work schedules to facilitate childcare arrangements. The parties exchanged proposals but were unable to agree on a suitable accommodation.”
A key matter of dispute in this case was whether the Human Rights Code supports the rule that a “family status” discrimination claim could only be successful if the employer had changed a term or condition of the employment relationship. There is no wording to that effect in the Code. The Court came to the following conclusions.
“[A]s a matter of statutory construction, the Code does not require a change in a term or condition of employment to trigger prima facie discrimination. The prohibition in s. 13(1)(b) relating to family status provides that a person must not “discriminate against a person regarding employment or any term or condition of employment” because of the family status of that person. Under ordinary principles of statutory interpretation, the words of the Code must be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Code, the object of the Code, and the intention of the Legislature…
There is nothing in the context of the Code that would limit the protection of s. 13(1)(b) to circumstances arising from a change in a term and condition of employment. To the contrary, the object of the Code as set out in s. 3 suggests a more expansive interpretation.”
Having dispensed with that employer-friendly requirement, the Court went on to give its definition of what amounts to “family status” discrimination.
“I conclude that for purposes of assessing conflicts between work requirements and family obligations, prima facie discrimination is made out when a term or condition of employment results in a serious interference with a substantial parental or other family duty or obligation. To … establish prima facie adverse impact discrimination as a result of a conflict between work requirements and family obligations, an applicant must establish that their family status includes a substantial parental or other duty or obligation, that they have suffered a serious adverse impact arising from a term or condition of employment, and that their family status was a factor in the adverse impact.”
What Does This Mean For Employers?
The likely impact of this change in human rights doctrine on the workplace should not be understated. It means that any time an employee’s home circumstances are impacting his/her ability to attend at work and perform duties, the employee may request an accommodation. That might involve working from home, working different hours and days of the week, performing different duties, etc.
If the request for accommodation involves a serious interference with a substantial parental (or other) family duty or obligation, the employer must seek to accommodate the employee’s request. Relevant to that accommodation effort will be whether the employment terms amount to a bona fide occupational requirement and whether the requested accommodation would be an undue hardship for the employer.
I can guarantee that employers are going to struggle under the burden of this change, especially during a period when many employees are still dealing with family-related implications of the pandemic and more and more employees seem to want to work from home.
For more information on this topic, I can recommend the article by my friends Mike Weiler & Chris Drinovz at Kane Shannon Weiler LLP in Vancouver, at…
This item is provided for general information purposes only and is not intended to be relied upon as legal advice. Informed legal advice should always be obtained about your specific circumstances.