In this article, FMC Partner Kristin Taylor discusses the increase in employees demanding accommodation based on their childcare and eldercare responsibilities and the development of a series of tests for employers to apply when assessing their obligations.
Reproduced with permission from the publisher.
Discrimination based on an employee’s family status has long been prohibited by human rights legislation in Canadian jurisdictions. “Family status” is universally defined as the status of being in a parent-child relationship applying to both childcare and eldercare. Despite the universality of this protection, there has been great uncertainty as to what it means. For many years, family status protection simply wasn’t used by employees. Its scope was thought to be limited to protecting working parents and primarily working mothers against discrimination in hiring and promotion. However, the last decade has seen an increase in employees demanding accommodation based on their childcare and eldercare responsibilities and the development of a series of tests for employers to apply when assessing their obligations.
The first noteworthy test was developed by the British Columbia Court of Appeal in a decision known as Campbell River.1 In this case, an employee challenged her employer’s change to her hours of work that were designed to better meet the needs of the employer’s clientele. She alleged that the change would interfere with her after-school care obligations to her special needs son. The British Columbia Court of Appeal was mindful of the inherent conflicts in every employee’s family obligations. Accordingly, it established a test that required the employee to prove that his or her obligations amounted to something more than the usual parenting requirements. The Court decided that there are three elements an employee must prove to trigger the duty to accommodate on the part of the employer: (1) a change in a term or condition of employment imposed by the employer, which resulted in (2) a serious interference with (3) a substantial parental duty or obligation of the employee. In the case at hand, the employee’s family circumstances met this test.
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