Sun 31st March 2019 by Andrew Tarver
One of the most underdeveloped areas of human rights law is protection of discrimination on the basis of family status. Protection against discrimination on the basis of family status in the human rights legislation of every common law jurisdiction in Canada, including Alberta. Within Alberta, family status is defined as “being related to another person by blood, marriage or adoption”, extending the protection beyond simply biological parents. This protection includes an obligation on employers to accommodate an employee’s family status needs – including a duty to make reasonable accommodations based on an employee’s childcare situation – and to avoid discriminatory decisions up to the point of undue hardship.
Family status protections offer an opportunity for legal caretakers of children – either through blood, marriage, or adoption – to push back against workplace policies that impact their ability for care for that child by seeking reasonable accommodations. In a 2015 Alberta Court of Queen’s Bench decision Justice Ross found that as the Employer provided no evidence to justify its policy that all welders had to work nightshifts, an Employee’s complaint that the nightshift requirement was discriminatory on the basis it created a burden of additional childcare costs was a violation of the Alberta Human Rights Act.
This does not mean that all work hour changes will be a violation of the Alberta Human Rights Act. Like other protected grounds under human rights legislation such as mental or physical disability, the accommodation process is a “multi-party inquiry”. That means employees are required to make reasonable attempts at “self-accommodating” just as the employer is expected to make reasonable attempts to modify the employee’s working conditions to ease childcare difficulties. If an employee can have another parent drop off their children at school for instance or their spouse can modify their own schedule with relative ease to account for the childcare need, the employee may be required to take that step first.
Furthermore, employees are not entitled to a “perfect” accommodation, only a reasonable one. As noted by Arbitrator David Jones, Q.C, “an employee needing accommodation in the employment relationship does not get to dictate the particular form of accommodation, nor the ultimate choice among various possible ways the particular need could be accommodated”. In that case, a police officer with two children sought to have a school resource officer position reduced from full-time to part-time. Arbitrator Jones, referring to programs the police service had for part-time employees, rejected the argument that the police service had failed to accommodate the officer, who he found was only prepared to accept her own proposed accommodation rather than work with the Employer on a reasonable solution.
It is worth noting that Alberta’s approach to assessing whether an employer has breached the Alberta Human Rights Act, which was confirmed by Justice Hollins in a 2019 Alberta Court of Queen’s Bench decision, differs from the current approach in jurisdictions like British Columbia and federally. In those jurisdictions, an employee must suffer “serious” or “substantial” interference with family status before the duty to accommodate is triggered.
Overall, it is clear that while employees are protected from discrimination on the basis of family status where it overlaps with childcare, there are significant limits to that protection. Like all requests for accommodation, employees must be willing to engage with the employer to find an appropriate – not necessarily perfect – solution. That process includes the employee contemplating whether there are reasonable adjustments they can make themselves
Family status, like other protected grounds, includes not only a requirement for accommodation but protection from discriminatory thinking broadly. This means for instance that not only must an employer generally avoid terminating an employee because they are a parent, they also must avoid terminating an employee because they are not a parent. In a 2018 Alberta Human Rights Tribunal decision for instance, Tribunal Chair Jean Munn found that by selecting an Employee for lay off over others partly to “keep the family journeymen because [the Employer] knew that those guys needed the jobs a little more than the single guys”, the Employer had breached the Alberta Human Rights Act. The Employer was also found to have discriminated against the Employee on the basis of a disability, and Chair Munn awarded lost wages and damages for injury to dignity and self-respect to the Employee.
Considering the complexity of human rights issues and the impact childcare struggles can have on working families, it is highly recommended that anyone facing an accommodation need based on childcare or a discrimination issue based on family status consult with an employment lawyer as soon as possible to get a strong picture of their rights before taking any further steps.