Cases based on the protected category have becoming increasingly common in recent years but it’s not a passing trend, warns one industry lawyer – here’s why.
Human Rights cases claiming discrimination on the basis of family status have become increasingly common in recent years but the uptick is no passing trend, warns one leading employment lawyer.
According to McInnes Cooper associate Amanda Nash, the development is just one of many side-effects brought about by Canada’s current sandwich generation – employees who are under pressure to care for both their children as well as elderly relatives.
“As more and more families struggle to manage competing demands of the workplace and of care-giving responsibilities, family status discrimination claims have risen,” confirms Newfoundland-based Nash.
“Courts and arbitrators have been forced to balance the interests of employees in difficult situations against the value of freedom of contract and the need to be fair to employers,” she continues. “Employers without an appetite for accommodation might be served a human rights complaint for dessert.”
So, with employers at an increased risk of human rights complaints, exactly how can HR professionals minimize risk and ensure they’re adequately accommodating family status? Sadly, there’s not a straight solution.
“There's no ‘standard’ answer to requests for accommodation on the basis of ‘family status’ (or on any other basis),” says Nash.
“As with a request for accommodation of any characteristic protected under human rights legislation, employers must consider each individually and, where appropriate, accommodate the employee to the point of undue hardship.
“The legal test for discrimination based on family status resulting from childcare obligations provides employers with a guideline for the considerations they should apply when handling an employee request for accommodation on this basis,” continues Nash.
In many cases, scheduling modifications will adequately address requests for family status accommodation; for example:
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According to McInnes Cooper associate Amanda Nash, the development is just one of many side-effects brought about by Canada’s current sandwich generation – employees who are under pressure to care for both their children as well as elderly relatives.
“As more and more families struggle to manage competing demands of the workplace and of care-giving responsibilities, family status discrimination claims have risen,” confirms Newfoundland-based Nash.
“Courts and arbitrators have been forced to balance the interests of employees in difficult situations against the value of freedom of contract and the need to be fair to employers,” she continues. “Employers without an appetite for accommodation might be served a human rights complaint for dessert.”
So, with employers at an increased risk of human rights complaints, exactly how can HR professionals minimize risk and ensure they’re adequately accommodating family status? Sadly, there’s not a straight solution.
“There's no ‘standard’ answer to requests for accommodation on the basis of ‘family status’ (or on any other basis),” says Nash.
“As with a request for accommodation of any characteristic protected under human rights legislation, employers must consider each individually and, where appropriate, accommodate the employee to the point of undue hardship.
“The legal test for discrimination based on family status resulting from childcare obligations provides employers with a guideline for the considerations they should apply when handling an employee request for accommodation on this basis,” continues Nash.
In many cases, scheduling modifications will adequately address requests for family status accommodation; for example:
- Changing an employee's existing schedule;
- Maintaining an existing schedule;
- Allowing the employee to work specific shifts, such as only days, only nights, only mornings; or
- Limiting the number of hours an employee works in a day.
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