Friday, 26 September 2014

The Evolution of the Family Status Analysis

Further to my post of May 27, 2014 (here), it appears that the analytical approach to family status discrimination claims demonstrated in Campbell River is on its way out.  As explained in that earlier blog, in Campbell River, Arbitrator Lanyon set a higher bar for establishing that a workplace rule or condition of employment was discriminatory on the basis of an employee's family status.  Prima facie discrimination would only exist where the rule or condition in question "results in a serious interference with a substantial parental or other family duty or obligation of the employee".  While that approach was adopted in a number of cases in various Canadian jurisdictions, there had continued to be a great deal of debate about whether the threshold for establishing family status discrimination should be different from (and higher than) for other protected grounds.  The Campbell River analysis took a big hit when the Federal Court of Appeal released its decisions in Seeley and Johnstone earlier this year.

Now, the Alberta Human Rights Commission has also sided with the Federal Court of Appeal, and has applied the Johnstone/Seeley analysis in a recent decision.  In Clark v. Bow Valley College, the complainant was a nursing instructor.  She was to start pregnancy leave in February 2010, but her baby was born 7 weeks premature.  As a result, her pregnancy leave commenced in early January 2010.  However, no one advised the complainant that they had retroactively adjusted the dates of her leave and that she would be expected to return to work in January 2011.  Unaware of the change, she had made childcare arrangements for her son to start in February 2011.  In November 2010, she learned that the employer had scheduled her return to work for January 3, 2011, and immediately contacted the College to advise them of the challenge this posed.  Over the next few weeks, she communicated with various representatives of the employer, in an effort to be granted vacation or unpaid leave of absence for the month of January.  However, her requests were denied (due to operational requirements), and she was told to 'avail herself' of childcare services and return to work, or she would be deemed to have abandoned her position.  When she was unable to arrange any earlier childcare for her son, her employment was terminated by the College.

The Chair hearing the complaint applied the approach in Johnstone/Seeley, and found that the complainant had made out a case of prima facie discrimination.  The primary dispute between the parties was whether the complainant had made reasonable efforts to resolve the childcare problems herself before requesting accommodation from the employer.  While there was little evidence about why the complainant's husband could not assist in caring for their son (and the husband did not testify about his unavailability), the Chair accepted as fact that the complainant's spouse did not represent a reasonable alternative in the circumstances. He was working at the time, albeit part-time, and could not be expected to quit his job in order to assist with the care of the child.  Given that the employer had granted the complainant only a few days' extension of her return to work, and had provided her with brochures for two childcare providers, but without engaging in any meaningful discussions about how her situation could be resolved, the Chair found that the employer had not accommodated her family status to the point of undue hardship.

Given this decision, and the growing tide of cases that are leaning in this direction, employers would be well-advised to take requests for family status accommodation seriously, particularly before considering ending the employment relationship.  When an employee approaches the employer with a request for an extension of leave or other modifications to the terms of employment, ensure that you gather sufficient information to assess whether the employee has made "reasonable" efforts to find a solution to their childcare problem.  Be aware: the employee need not come up with a perfect solution, but must only make adequate effort.  The personal circumstances of the employee, such as the availability of a spouse or other family member, the costs associated with different childcare options, or any medical issues experienced by the child, must all be weighed in assessing what is reasonable.  Assuming that the employee has made appropriate efforts, the focus must then shift to creative solutions that the employer can support, such as adjusting hours of work, permitting a return to work on a part-time basis, assisting with the costs of childcare (at least on a temporary basis), or extending the employee's leave while they make necessary arrangements.  Remember that the "undue hardship" threshold is very high.  If, and only if, no possible accommodation can be identified or implemented without incurring undue hardship will the employer be held blameless.
Do you have questions about the test for family status discrimination or the duty to accommodate?  Do not hesitate to contact Lance Ceaser for additional information and guidance.

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