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UNDERSTANDING MARITAL AND FAMILY STATUS WITHIN A CORPORATION

A large local employer we will call Acme Education Systems has an internal employment policy which prohibits situations in which one relative can directly influence the employment of another.  The policy seeks to avoid conflict of interest situations in a manner consistent with the Ontario Human Rights Code.  Unfortunately, it does not succeed in that goal. 
 
Acme’s policy is that it will not knowingly employ relatives in a direct supervisory relationship with another.  The problem with the policy is that its definition of “relative” is too broad.  Relative, in the policy, includes spouses and common law spouses, children and step-children, parents, brothers and sisters, grandparents and in-laws.
 
The Ontario Human Rights Code prohibits discrimination in employment based on, among other things, a person’s marital status and family status.  Family status means the status of being in a parent and child relationship. 
 
There is an exception in the Code to these provisions.  The exception indicates that an employer can grant or withhold employment or advancement in employment to a person who is the spouse, child or parent of another employee.  Take note, this exception says nothing about being a sister-in-law or brother-in-law of another employee.
 
Imagine that you work at Acme Education Systems and are told that you cannot have a job or have to transfer out of a job or be terminated because you have a brother-in-law in a supervisory capacity in your department.
 
First of all, if you are terminated, even if the relative was a parent, spouse or child, it is a violation of the Code.  The exceptions to the rules listed above do not include terminating employment, only granting or withholding employment.  That is different from losing employment you already have.  Second, you can’t have a brother-in-law unless you are married.  That means that if you are experiencing any disadvantage in your employment as a result of having a brother-in-law (being married), it is a violation of the Ontario Human Rights Code.  You are being discriminated against on the basis of your marital status. 
 
In October of 2002, the Supreme Court of Canada released a decision which indicated that “martial status” as it is found in the Code, includes the specific and singular identity of the person to whom you are married.  The definition of martial status in the Code is “the status of being married, single, widowed, divorced or separated and includes the status of living with a person of the opposite sex in a conjugal relationship outside marriage” (same sex relationships are dealt with elsewhere).   The Supreme Court decided  that “status” includes the identity of your spouse.  What the Supreme Court said was that if you are fired or punished in some way because the boss hates your husband, you have been discriminated against on the basis of your marital status.
 

If this interpretation of the definition of marital status does not make much sense to you, you are not alone.  I argued the case before the Supreme Court of Canada and I felt the same way when I lost the argument. 
 
But whether it makes sense or not, what the Supreme Court of Canada says is the law.  When it is  applied to Acme’s policy, the fact that the policy violates the Code is clear.  
 
Your husband is Joe Smith and his brother John is a supervisor in your department.  If you suffer any disadvantage as a result of that fact, your rights have been violated.  You are being discriminated against because you are married to Joe Smith, whose brother happens to be John Smith.
 
Human rights legislation can be very complicated and I am sure that Acme’s contravention of the Code was unintentional.  There are probably many other large corporations in the same boat.  I know from advising employers that constantly reviewing voluminous personnel policies to make sure that they are in compliance with all existing legislation is a big job.  Human rights legislation, however, is extremely important to the working lives of women and men throughout this province.  As it keeps changing, we all learn together.
 
As published in the Hamilton Spectator, July 9, 2003
Ed Canning
Ed Canning
P: 905.572.5809
ecanning@rossmcbride.com