Duty to accommodate could now arise if there’s a change in employee’s personal circumstances
A recent ruling in British Columbia finally clarified the test for family status discrimination in that province, having significant future repercussions when it comes to accommodation requirements related to family responsibilities.
The case concerned a welder who worked alongside her husband. She fell pregnant and went on maternity leave in 2016. In 2018, she requested that upon her return to work, either herself or her husband be allowed to work shifts which allowed them to balance childcare.
Her Employer instead suggested they work opposite shifts so that one parent was always at home.
“Through their union, the employee and her husband rejected this option because of the negative impact working two completely opposite shifts would have on their family life,” Jadine Lannon, lawyer at Forte Workplace Law, tells HRD. “The Employer ultimately did not agree to accommodate the couple. The employee filed a human rights complaint against the company, arguing that its failure to accommodate their childcare obligations was discrimination on the basis of family status, among other grounds.”
Earlier this year, HRD reported on constructive dismissals and their role in the accommodation process.
Determining a prima facie case of discrimination
The Employer moved to have the case dismissed, based on the prima facie test for family status discrimination previously established in BC. As Lannon tells HRD, in Campbell River the BC Court of Appeal held that in order to establish a prima facie case of discrimination based on family status, a complainant had to demonstrate that:
- There was a change in a term or condition of their employment; and
- The change resulted in a serious interference with a substantial parental or other family duty or obligation of the employee.
“[The Employer] argued that because it had not imposed a change in a term or condition of the [employee’s] employment, there was no reasonable prospect her complaint would succeed if it proceeded to a hearing,” says Lannon. “Any negative impact [the employee] experienced was instead caused by a change in her own circumstance – namely having a child.”
The BC Human Rights Tribunal dismissed The Employer’s application to dismiss the complaint, finding that the prima facie test from Campbell River didn’t require a change in a term or condition of employment. It was sufficient if a change in the employee’s circumstances triggered the serious interference with a substantial parental duty. The BC Court of Appeal ultimately upheld this finding in its decision.
What does this ruling mean?
Why is this ruling so important? Well, it categorically clarifies the test for family statis discrimination in British Columbia – and that it no longer requires employer-initiated changes to an employee’s work or workplace.
“Before this decision, it was unclear whether the test required a complainant to show that a term or condition of employment has been changed to trigger family status discrimination,” Michelle McKinnon, associate at McMillian LLP, tells HRD. “This decision now confirms that a change in a term or condition of employment is not a requirement.
“We’re likely to see more human rights complaints from employees as the hurdle of showing that a term or condition of employment has changed has now been removed. That said, employers’ interests are protected as the test still requires a “serious” interference with a “substantial” parental or other family obligation.”
Speaking on the ruling, BC’s Human Rights Commissioner called the ruling a “significant win for gender equality”, adding that it’s a step forward in protecting employees with parental duties.
“This ruling clarifies that the Campbell River test does not require something about one’s employment to change in order to establish a prima facie case of discrimination on the basis of family status,” says Lannon. “Now, in order to establish prima facie discrimination on the basis of family status, an employee only needs to demonstrate that something about their employment is seriously interfering with a substantial parental or other family duty or obligation, regardless of whether there has been a change at work.
“This would capture situations where the employee’s circumstances have changed, like having a child or an increase in a family member’s care requirements.”
How will this ruling impact employers?
So what does all this mean? Well, for employers it means you need to start treading carefully when refusing accommodation requests. Discrimination is no longer determined based on a change to an employment contract – and employers could have a legal duty to alter employee schedules for child or elder care.
“Both employees and employers need to be aware that an employer-initiated change to an employee’s terms or conditions of employment is no longer required in order to establish that a prima facie case of discrimination based on family status,” says Lannon.
“For employers in particular, this means that their duty to accommodate an employee could arise if there is a change in the employee’s personal circumstances, such as the birth of a new child or a severely ill family member. However, an employee still must demonstrate that their new personal circumstances gives rise to a substantial parental and/or familial obligation and that this obligation is being seriously impacted by their employment.”
