Accommodating family status in the workplace: the great prima facie case debate

Published on May 10, 2010 by Donna Seale

Back in 2007, when the body of law relating to the accommodation of family status in the workplace was still in its infancy, I did a post on what the state of the law was at that time. Recently, I spoke at the Law Society of Manitoba’s Accommodation in the Workplace seminar and addressed my view on where things stand now. As a result, I thought it a good time to provide you with an update.

In my 2007 post I spoke about the British Columbia Court of Appeal decision in Health Sciences Assn. of British Columbia v. Campbell River & North Island Transition Society (which I’ll refer to, in short form, as “Campbell River”) which established that limitations needed to be set regarding when an employee’s family obligations could trigger human rights protection. The Court determined that a prima facie case of discrimination on the basis of family status could only be made out in the employment context when an employee could show that:

there had been a change in a term or condition of employment imposed by the employer; and
the change resulted in a serious interference with a substantial parental or other family duty or obligation.

The Court stressed that a determination of whether a prima facie case of discrimination on the basis of family status could be made out was dependent on the circumstances of each situation.

As I noted in my post back in 2007, while the Campbell River decision ruled the day in British Columbia given that it was rendered by that province’s highest court, some decision makers outside of BC took issue with the Court’s reasoning. In particular, concerns were raised that what the Campbell River test required an employee to prove before he or she could establish a prima facie case of discrimination on the grounds of family status set the bar too high relative to and too differently from any other protected characteristic covered by human rights legislation. In the more traditional prima facie case test, a complainant need only show that they have been adversely affected in the workplace, either by having a burden imposed on them or being denied an opportunity, and that this adverse effect can be tied to a protected characteristic (such as age, sex, religion, disability, etc.).

Interestingly, time has not healed all wounds. Claims that have since been filed by employees either before human rights tribunals or arbitrators in grievance proceedings that they have been discriminated against by their employers on the basis of family status and require accommodation continue to be met with mixed results. And, those decisions questioning the validity of Campbell River have not let up.

While there isn’t a definitive pattern established yet, it appears as though the Human Rights Tribunal of Ontario is rejecting adoption of the Campbell River test. In its recent decision in McDonald v. Mid-Huron Roofing, no reference to the Campbell River test was made at all. Instead, the Tribunal appeared to use the traditional prima facie case test to conclude that an employer’s refusal to allow an employee some additional time away from work to assist his wife in an urgent family situation was discriminatory on the basis of family status. Ultimately, the Tribunal found that the employer had failed to appropriately consider whether it could provide the employee with additional time away from work and that the employer had failed to show that the employee’s absences up to the time of his termination had caused undue hardship to the company.

Beyond the different approach seemingly being taken by the HRTO to the determination of whether an employee can make out a prima facie case of discrimination on the basis of family status, some further cracks in the Campbell River test are starting to show elsewhere. In I.B.E.W., Local 636 v. Power Stream Inc., 2009 CarswellOnt 7325 (copy of the decision available by subscription only), the Ontario Arbitration Board appears to have created a modification to the Campbell River analysis. In particular, Arbitrator Jesin agreed with the prior criticism of Campbell River that it was too restrictive since it only allowed for a finding of discrimination when an employee proved that there was a change in a term or condition of employment imposed by the employer. He agreed that a change in an employee’s family circumstances could also precipitate a conflict between work and parental obligations. He stressed that an existing workplace rule that did not accommodate the employee’s change in circumstances may also be found to be discriminatory on the basis of family status in certain situations. According to this “modified” Campbell River test, the following questions need to be asked in order to determine if a prima facie case of family status discrimination exists when an employee encounters work-family conflict:

what are the relevant characteristics establishing the employee’s family status?
what are the adverse effects complained of and is it reasonable to expect that [human rights legislation] offers protection against the particular adverse effect of the employer’s action on each employee?
what prompted the adverse effect on the employee — a change in the employer’s rule or a change in the characteristics of the employee’s family status?
what efforts has the employee made to self-accommodate the conflict [between work and family]. Have they rejected options at self-accommodation that they should reasonably be expected to have made?

Further west, the Alberta Human Rights Panel in a case called Rawleigh v. Canada Safeway recently continues the line of cases that challenge the very validity of the Campbell River test. In that particular decision, although the Panel applied Campbell River to conclude that the employee had been discriminated against by his employer on the basis of family status and that there was a failure to accommodate, it took a swipe at the BC Court of Appeal’s reasoning in Campbell River. In particular, the Alberta Panel strongly questioned the need to limit the prima facie case test in relation to the accommodation of family status and even went so far as to suggest that the Campbell River test itself may well be discriminatory.

In addition to talking about the cases above, as part of my presentation I also put together what I call a “Case Law Snapshot. It is in table format and sets out the main cases on the duty to accommodate family status in the workplace that I am aware of that have been decided since Campbell River in 2004. It breaks the cases down on the basis of whether they followed the Campbell River test or took a different approach. It will provide you with a better sense of the “great prima facie case debate” I see occurring in the law. I urge you to have a read.

So, what should you take from the cases at this point? Here are my current thoughts:

Although Campbell River remains the only appellate court authority on the subject of what constitutes prima facie discrimination on the basis of family status, there is a growing body of decisions that give rise to questions about Campbell River’s value as precedent. It appears that there are three, perhaps four, different approaches forming in the case law — application of the Campbell River test (primarily in BC), application of Campbell River but in protest (like in Rawleigh), a modified Campbell River test (a la Power Stream) and the traditional approach (as utilized in the McDonald case, above). For now, it is safe to say that it is still unsettled law as to what test should be applied to determine whether an employee has made out a case of prima facie discrimination;
What is clear is that in certain circumstances, employees may be entitled to have important family obligations accommodated by their employers to the point of undue hardship. These family obligations may extend beyond parent-child relationships as, generally speaking, a broad interpretation of the concept of “family status” itself has been applied across Canada. So, for example, elder care issues arising from child-parent relationships may also be engaged. That having been said, it is unlikely that all family-related obligations will be sufficient to equate to “family status”. If a person’s situation is commonplace or based on preference, as opposed to it being mandatory or essential, the less a likelihood that a duty to accommodate on the part of the employer will be triggered;
It would appear that the duty to accommodate can be triggered not only as a result of a change made in workplace terms and conditions by an employer but also as a result of a change in an employee’s circumstances that then creates a conflict for the employee in meeting a work-related obligation (see the Power Stream decision noted above);
It is advisable that employers do not reject an employee’s request for accommodation of family status out-of-hand. Serious consideration should be given to all requests by conducting an examination of the underlying facts and circumstances. This would include determining from the employee what steps they have taken to resolve their work-family conflict themselves. An assessment as to whether a denial of the request could constitute discrimination should be made and then it should be determined if the request can be accommodated. This may require flexibility in workplace rules, policies or practices.
When considering making changes to terms or conditions of employment, employers should be aware that the changes may impact unique or mandatory family obligations of employees. If at all possible, accommodation should be built into the changes to allow for flexibility in particular circumstances.

Stay tuned for my next post where I’ll be discussing a recent decision from the Alberta Arbitration Board which tries to come to grips with the great prima facie case debate I’ve outlined above.

By the way, you’re receiving this post from my freshly re-designed blog (yes, I’ve redesiged it again, if you’re keeping track!). This time, I think I’ve got it right and I thank Skunkworks Creative Group for their hard work. Please have a gander and let me know your thoughts!

Image of parent and child, above, by vivekchugh.

Categories: Best practices, Discrimination, Items of interest, Reasonable Accommodation | Tags: Discrimination, employment, family status, prima facie case, Reasonable Accommodation

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Twitter Talk – January 29, 2010

Published on January 29, 2010 by Donna Seale

Here’s what I’ve found interesting in the “Twitter-sphere” this past week. Click on the links to read the original article or post:

RT: @fpbowen WFP Survey finds number of women in top jobs at largest companies has stalled:http://bit.ly/bOgn5m

[Not employment related but interesting just the same...] RT: @globeandmail Muslim basketball player fails to overturn headscarf ban http://tgam.ca/HR9

RT @firstreference: An aging workforce: the legal issues (Part I)http://bit.ly/61rkZH

RT @OmarHaRedeye: “The 5 groups that experience the most discrimination in the workplace” http://bit.ly/7dmpKp This shouldn’t be a surprise.

Should religious symbols be banned in the workplace?http://chilp.it/410874

Have a great weekend!

Categories: In the News, Items of interest, Twitter Talk | Tags: human rights, Twitter Talk, workplace

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