Wednesday, 1 April 2015

The FCA Has Established the Test for Family Status Discrimination ... Or Has It?

As earlier reported, the Federal Court of Appeal established a test for prima facie discrimination on the basis of "family status" in its decisions in Johnstone and Seeley (reported on here).  The Court stated that a claimant must establish not only that he or she had legitimate family obligations that the workplace rule interfered with, but that the claimant had made reasonable efforts to address his or her family obligations.  Under this approach, the employer would have no onus to respond, by establishing that it had made reasonable accommodation efforts (short of undue hardship), unless and until the claimant had shown that attempts to 'self-accommodate' had been unsuccessful.  Many wondered if this formulation of the prima facie test for family status discrimination would be the final word on the subject, but it's now clear that it was not.  The Alberta Court of Queen's Bench has now weighed in, and the Court is not in agreement with the test set by the Federal Court of Appeal.

In SMS Equipment Inc. v. Communications, Energy and Paperworkers Union, Local 707, the employee was a single mother of two children who was required to work day and night shifts.  When she sought accommodation of her childcare obligations, by being assigned to a straight day shift, her employer declined, even though there was another employee who was willing to switch to a straight night shift.  The labour arbitrator hearing the employee's grievance determined that the employer had discriminated against the employee on the basis of family status, and that the employer had not discharged its duty to accommodate. The employer sought judicial review and was unsuccessful.  In dismissing the application, Justice Ross of the Alberta Court of Queen's Bench offered the following opinion on the test formulated by the Federal Court of Appeal (at para. 77):
A flexible and contextual application of the Moore test does not justify the application of an entirely different test of prima facie discrimination, and particularly does not justify including within that test a self-accommodation element that is not required with respect to other prohibited grounds of discrimination. This is unnecessary and contrary to the objects of human rights law. It is unnecessary because a finding of discrimination does not automatically follow once a prima facie case is established. It is only when the complainant establishes a prima facie case and the respondent fails to justify the rule or conduct that discrimination will be found. It is contrary to the objects of human rights law because it imposes one-sided and intrusive inquiries on complainants in family status discrimination cases. Complainants are not only required to prove that a workplace rule has a discriminatory impact on them, but that they were unable to avoid that impact. Thus the Grievor was subjected to an examination regarding her relationship or lack thereof with the biological fathers of her children, her choice of caregivers for her children and her personal financial circumstances. She had to undergo this examination before the Employer would even consider a request for an accommodation in the form of a shift exchange that she had arranged with another willing employee. The search for accommodation is intended to be “a multi-party inquiry,” involving the employer, the union and the complainant: Central Okanagan School District No 23 v Renaud, 1992 CanLII 81 (SCC), [1992] 2 SCR 970 at 994, 141 NR 185 [Central Okanagan], cited in Arbitrator’s Decision at para 69. Converting this multi-party inquiry into a one-sided investigation could certainly deter complainants from pursuing claims for discrimination based on family status, and thus detract from the policy goal of removing discriminatory barriers to full participation in the workforce.  
In short, the Alberta Court was of the view that the test for prima facie family status discrimination was the same as applied in relation to any other prohibited ground of discrimination. The complainant must show that:
1.      The complainant has a characteristic that is protected from discrimination;
2.      The complainant has experienced an adverse impact; and
3.      The complainant must show that the protected characteristic was a factor in the adverse impact.
Under this analysis, the efforts made by the employee to accommodate his or her family obligations would not be relevant to whether or not the employer had discriminated against the employee.  However, relying on the decision in Central Okanagan (cited in the paragraph quoted above), an employer could still argue that the employee had not met his or her share of the duty by not looking into options that would have eliminated or reduced the need for workplace accommodation (e.g., by seeking assistance from a spouse or family member).  To date, the issue of the test in the Johnstone/Seeley decisions has not been determined by the courts in Ontario.  It will be interesting to see which side of this debate they land on.  Stay tuned...

Do you need assistance with complex accommodation issues?  Need to better understand your workplace obligations?  Contact Lance Ceaser for expert guidance.


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