It is illegal to discriminate on the basis of family status
Every human rights code across the country, including the Canada Human Rights Act, makes it illegal for an employer to discriminate in employment on the basis of family status. That can mean that the employer has to make changes to the workplace, to the point of it becoming an undue hardship for the employer, for employees who claim their parental duties require it.
Up until recently, this had only been applied to medical situations.
In one case, the mother of a child with a serious medical condition requested a change in her hours so she could be home when her child got back from school to deal with issues arising from the child’s condition. That mother had tried every other option she could think of before she asked for the accommodation. The employer refused but didn’t really have a good explanation as to why the adjustment in her schedule would have been extremely inconvenient or impossible.
Now, with a recent case, this area of human rights law has gone one step further. A mother who worked for the Canadian Border Services at Pearson International Airport worked in a 24-hour a day operation with shifts that had no predictable pattern and changed almost every week. She could be working any time of the day or night, any day of the week.
After she had her first child she asked the employer to let her work three fixed twelve and a half hour shifts. She had found people to cover those particular three days and she could take care of her child the other four. If they agreed she would still be working full time hours.
The employer refused. It said she could work fixed shifts but only on a part time basis. Of course, this affected the mother’s income.
The evidence before the Canada Human Rights Tribunal was that the employer had made arrangements like this for people with medical conditions and, to some extent, for people who could not work on certain days for religious reasons. They were not, however, prepared to make that accommodation for child care arrangements.
If you had asked me eight years ago whether this mother’s case could succeed, I would have thought not. I naively thought that human rights adjudicators would always find a way to avoid such decisions in recognition that it could significantly alter Canadian workplaces and the terms of employment for millions of people. Obviously I would have been wrong. This mother won and received an award for lost pay for all that time she was only aloud to work part time and $35,000 in general damages.
It is true that this case was somewhat unique. Few people work anywhere near as unpredictable hours as this mother did. It’s also true that in considering the issue of undue hardship, Canadian Border Services is a huge employer with more flexibility than a ten-employee factory. To be fair, this decision by no means implies that any time a parent says they need a change in their working hours for childcare reasons they are entitled to it. To even get to the point of making that request, an employee would have to prove, as this mother did, that finding childcare for the scheduled work time was virtually impossible.
Smaller employers will have a good reason to deny such a request where granting it would have a significant impact on other employees. Why should Sheila, who for her own reasons chose not to have children, be forced to work straight midnight shifts because Jane can’t find childcare?
This case does open the door to other important questions. In Ontario, “family status” is defined as “the status of being in a parent/child relationship”.
The parent and child relationship works both ways. Imagine I have an elderly parent who I need to visit certain times of the day to assist them with medically required insulin injections. Let’s assume that my parent is in a rural area where having somebody else come in to assist them is impossible. Does my employer have to accommodate this request unless they can prove it’s an undue hardship for them to do so? Would failure to do so constitute discrimination on the basis of my family status?
After practicing human rights law for 18 years, I can make no reliable prediction as to how that question will be answered.
What I can predict is that employers will generally fight these requests as hard as they can. Many of them would rather fight and lose than open what they believe are floodgates. They will, not surprisingly, fear that many workers have either an elderly parent or child that requires their assistance and that requests for altered work hours will come streaming in.
As published in the Hamilton Spectator, August 23, 2010