Published on May 17, 2010 by Donna Seale
Last week I posted about the “great prima facie case debate” that is occurring amongst human rights tribunals, courts and arbitrators regarding when an employee is able to prove a prima facie case of discrimination on the basis of family status. In other words, in what circumstances can an employee demonstrate, without considering an employer’s defence, that they have been affected adversely in the workplace on the basis of their status as parents, children, etc.? The conclusion that I reached at the end of the post was that it was still quite uncertain as to what test an employee had to meet to demonstrate this type of discrimination. That took us up until the end of 2009 — at least based on the cases I had referred to in that post.
In the February 2010 decision of the Alberta Arbitration Board in Alberta (Solicitor General Department) v. Alberta Union of Provincial Employees, 2010 CarswellAlta 742 (text of decision available by subscription only), we get a bit more clarity, at least from the Alberta Arbitration Board’s perspective, as to what a parent is required to show in order to prove that a workplace requirement causes sufficient interference with a parental obligation to their child that it constitutes a prima facie human rights violation.
The Facts
In the Alberta case, the female employee, a correctional officer, filed a grievance against her employer, a Correctional Centre, after her shift schedule was changed resulting in her being faced with child care challenges relating to her eleven year old son. Prior to the schedule change, the grievor worked day and afternoon shifts only. It is important to note here that the employee was always technically responsible for working nights, it just so happened that a co-worker volunteered to work nights permanently, resulting in none of the other female officers on the that shift schedule to have to work nights themselves. But when the officer on permanent nights was re-assigned, management ordered all female officers on the grievor’s schedule to take turns working the night shift. For the employee, this meant she had to work five sets of night shifts annually for a total of 30 days.
The night shift requirement created challenges for the grievor. As a single mother, she raised concerns about her ability to arrange care for her eleven year old son at night (the night shift went from 11pm to 7am). In examining her options, the grievor concluded that she simply could not work the night shift as she did not have available to her consistent child care that she was fully comfortable with. For example, although she was able to count on her ex-husband for some night time assistance, as he worked for the same employer on a permanent night shift from 7pm to 7am, there were times when their work schedules would conflict. While the grievor’s mother could also assist, because the mother already provided after school care when the employee worked the afternoon shift, the grievor took the position that there were limits on how much night care she could have her mother assume. The grievor also had the option of having her son stay with relatives, but she indicated that this arrangement was disruptive and left her son unhappy and anxious. Over and above the practical challenges of finding night care for her son in order to work the night shift, the employee found herself personally challenged to focus on her work when her child was being cared for anyone other than her ex-husband. She said she would rather take time off in order to give her the peace of mind that her son was taken care of properly.
The grievor proposed, as a solution to her challenges, that the employer permit the female correctional officers from the three shift schedules (A, B and C) to rotate through the night shift. She said that this would result in a more fairer assignment of night shift work for all of the women. Alternatively, she suggested that the night shifts should be shared equally amongst the men and women of her shift schedule (Schedule A), so as to reduce the number of night shifts she, or anyone else, would have to work. The employer rejected both of these proposals as being operationally unsound. Regarding the first option, the employer argued that moving employees across Schedules A, B and C in order to have all women work night shift would be expensive and disruptive. As for the second option, the employer advised that male correctional officers could not be assigned to female units and that this was a best practice backed by research.
The decision
The Board went through many of the cases I had referenced in my previous post, starting with Campbell River and ending with Power Stream. Ultimately, the Board appears to have adopted a modified version of Campbell River, incorporating, at least subtly, concepts from Power Stream. Here’s what the Board said:
“From the review of the jurisprudence, the Board concludes that family status discrimination claims based on parental obligations involve a careful assessment both of the parental obligation and the degree of interference with this obligation as a result of a bona fide work requirement. The Board accepts that all work requirements have some degree of interference with parental obligations. Absent express public policy, such as that enacted with respect to maternity leave, family status discrimination cannot possibly be interpreted as arising in any situation in which a work requirement results in some interference, no matter how minimal, with a parental obligation. In order to work, all parents must take some steps on their own to ensure that they can fulfill both their parental obligations and their work commitments. Part of any examination of whether a prima facie case has been established for family status discrimination must therefore include an analysis of the steps taken by the employee him or herself to balance their worklife responsibilities” (emphasis mine).
And, further:
“With respect to the night shift, in order for the Board to conclude that there was a serious interference with the Grievor’s parental obligations, the Board needs to be satisfied that reasonable alternatives for caring for her son at night were not available to the Grievor. In this sense, we view the evidentiary burden for establishing a prima facie case for family status discrimination as analogous to the burden on employees asking for accommodation on the baiss of disability. Such employees have the onus of first establishing, through appropriate evidence, that they have a physical or mental condition that requirs accommodation in their work setting. In the case of family status, the employee also bears the onus of providing sufficient evidence of the absence of reasonable alternatives for care” (emphasis mine).
With these outlined principles as a backdrop, the Board concluded that the female employee failed to prove that reasonable alternatives for night time care for her son were unavailable because:
As she could not prove that she had thoroughly explored all reasonable alternatives for finding childcare, the Board determined that the grievor could not make out a prima facie case of discrimination and she was, therefore, not entitled to accommodation by her employer under human rights law.
Thoughts on the case
I would think that employers would like this decision given it latches onto the concept coming out of Power Stream that employees need to demonstrate that they have explored all reasonable forms of self-accommodation before they can claim prima facie discrimination on the basis of family status whenever there is a work-child care conflict triggered by a change in a work-related requirement. It also maintains the bottom line position from Campbell River that a prima facie case of discrimination based on family status can only be made out where the employee can show a serious interference with a substantial parental obligation.
Certainly, I think it makes good sense for employees to be able to show they have exhausted personal options to find appropriate child care before they look to their employer to resolve a work/child care conflict. But, I’m not sure I agree with the Board’s assessment that the evidentiary burden established for an employee to prove prima facie discrimination on the basis of family status is analogous to the burden on employees seeking accommodation due to disability. An employee who is contending a disability requiring a workplace accommodation will most often turn to their doctor or care giver for written information to support the existence of a disability. Speaking very generally, the doctor’s information is viewed as an objective watermark proving disability. Once that information is in hand, there is no requirement in human rights law for the employee to show they have done all they can to self-accommodate their disability before requesting employer assistance. Based on the evolution of the law on the duty to accommodate family status so far, the situation is very different. An employee cannot turn to some objective entity to say “I need proof that I am a parent who has child care issues.” Then there is the self-accommodation element which is an add-on not present in relation to any other protected characteristic under human rights legislation.
So, how exactly does an employee prove they have exhausted all of their self-accommodation options? How does an employer know when they’ve been given sufficient information from their employee to trigger the duty to accommodate family status? In Campbell River, the employee presented a medical report from her son’s doctor in support of her contention that her attendance to her son’s needs after school was medically necessary for his well being and, as a result, she could not work the shift change being required by her employer. That failed to sway her employer, though, and the matter was ultimately dealt with in favor of the employee before the BC Court of Appeal. What about the employee in the Alberta Arbitration Board case? Would she have needed to bring notes from her ex-husband and her mother to indicate they could not cover child care for some or all of the night shifts? Would those notes have been believed given they likely would not be considered the objective equivalent of a doctor’s note? Would she have needed to get them to swear affidavits instead? Did she need to have her son assessed by a doctor to demonstrate her belief that having him stay with relatives when she worked nights would be a detriment to him? The questions go on and on (at least in my head!).
Listen — I’m not trying to say that I agree or disagree with the final result of the Alberta case. I am merely pointing out the issues that employers and employees are going to continue to have to grapple with when dealing with family status discrimination claims based on parental obligations according to current case law.
Now I’d like to hear from you. What do you think about this decision? Do you agree with it? Do you have concerns? Where do you stand?
Published on February 4, 2009 by Donna Seale
Today marks our last installment in the series on whether employers should be using the Internet to screen job applicants. (Well, at least it's my last post for now. As I've mentioned before, this is an emerging area of the law so I'm sure there will be more to talk about down the road). If you missed the first two posts of the series, you can check out Part One here and Part Two here. I'd also urge you to read the comments posted by Dan Michaluk to Part Two (scroll down to the end of the post and click on "comments"). His comments aligned very well with my thoughts going into this post and they also prompted me to press my thinking further so I thank him for taking the time to contribute.
I'll be honest, when I was first asked by one of my readers about whether employers should be doing Internet-based or social networking-based searches in the recruitment process my initial response was to recommend the opposite of Nike's famous slogan and say "just don't do it". Certainly, in Part Two, I set out a whole host of legal problems that can arise from doing Internet searches in the recruiting process so it would be completely reasonable to suggest you should avoid them like the plague — at least until we have further direction from the law. At this point in my thinking process, I still tend to sit closer to that side of the fence.
But, I also have to be pragmatic. Given that there are employers in Canada already doing these searches (remember that 12% statistic we talked about in Part One), given this is a trend that will likely only increase as time goes on (as shown by what's already occurring in the US) and given that I know the lure of a quick Google search may be just too much for some of you to resist, let's move to looking at this issue from a practical perspective.
If you think you might want to take a peek at what pops up on an Internet-based search of your job applicants, what are the things you should be thinking about in order to minimize your legal liability?
Here are my TOP EIGHT TIPS:
1. Be Realistic
Before you embark on a Google or social networking site search, I think it's important for you to reflect on whether, given who you are as an employer and the nature of the job you are attempting to fill, you really need to conduct these types of searches in the first place. If you're a mom and pop grocery store looking for a part-time bagger, your approach might be very different than, say, if you're the President of the United States looking to cull together your White House team.
Going back to Part Two, you'll want to ask yourself whether a job candidate's online presence, whatever it may be, could somehow come into conflict with the job you are considering hiring them for. If you can't connect the dots, you shouldn't be doing these types of searches.
Remember: just because the information may be out there doesn't mean you need to access it.
2. Maintain the Upside-Down Funnel
Remember in Part Two I talked about how it is always advisable to think of the the information-gathering process relating to your job recruits as an upside-down funnel. You should be ensuring that you are only asking what you need to at each stage to determine whether your candidate moves forward. Too much information too soon plus an adverse hiring decision will increase the chances you'll be faced with a discrimination claim.
With that in mind, it is my view that any Internet-based searches should be done after you have made your candidate a formal job offer.
3. Be Upfront
This point ties in closely with point #2. I think you should be clear with all of your job applicants that if they reach the end of your recruitment process and are offered a job, you will be conducting a full background check. You should indicate what that background check will consist of, including Internet-based searches.
By disclosing this from the get-go you demonstrate that you're not doing anything "behind anyone's back", and you might even have job applicants who weed themselves out because of your disclosure. That might be a good thing (if they, perhaps, have put something out on the web that might not make them a good fit for your organization) or not (you may get quality candidates who just aren't comfortable with employers who do these searches regardless of whether there is anything negative out there about them to find).
4. Establish a written process
The saying "the best defence is a good offence" applies as equally to mitigating your legal risk as it does to the sports world. By this I mean that it always helps to have a written document that you can point to in your defence against litigation setting out what you did and didn't do in relation to any particular process you adopt in your workplace.
Here, you'll want to give thought to setting down in writing the following:
a. what Internet-based searches will be run;
b. what information yielded by those searches will be examined and why;
c. how you will assess what may be discovered;
d. what use will be made of that information;
e. how you will document any information relied on for the purposes of the hiring decision.
You'll really want to give a lot of thought to developing your search criteria so you can show a human rights commission, tribunal or civil court that you weren't just going on a fishing expedition and that there are tangible job-related reasons why you conducted these searches in the first place. Most importantly, from my perspective, you always want to be able to demonstrate that you only looked into what was needed to appropriately judge your job applicants on the basis of personal merit. The more tightly honed your search criteria, the greater the likelihood that it might be found reasonable upon review.
In terms of record-keeping, as pointed out by Dan Michaluk in his comments to my Part Two post, you'll want to retain a hard copy of any information generated by Internet-based searches that meets your search criteria. The hard copies should be placed on your recruitment file. As Dan notes:
"This should keep the decision clean of irrelevant and risky information and should also eliminate any risks of getting into disputes about production of search-related forensic information."
5. Have someone other than the decision-maker do the searches
To ensure that the person who is making the decisions as to who gets hired and who doesn't is only able to base the decision on the best (read: legally sound) and most relevant information it is advisable to insulate him or her from any Internet-based searches being done. In other words, the decision-maker should never do the searches. Keeping the decision-maker insulated in this fashion helps insulate the hiring decision from legal criticism.
Of course, you'll want to ensure that whoever does do the searches is fully apprised of your written process under point #4, and is clear on what they need to do to abide by the law when conducting the searches and determining what information should and shouldn't be passed onto the decision-maker.
6. Be Consistent
Ensure that you apply the Internet-based background checks equitably to all candidates to whom you've made a job offer. If you don't, you might find yourself faced with a discrimination claim on that basis alone.
Similarly, once you embark on doing these types of background searches either for all or just particular jobs in your workplace (again, keep in mind point #1 above), then do them consistently. If you do them some times and not others, it begs the question why. And a human rights commission may well be interested in finding out.
7. Be as fair as possible
I think it would bode well for an employer to give job candidates the opportunity to respond to any concerning information generated by the Internet-based background check. Given the concerns I raised in Part Two about ensuring the accuracy of information gathered on an Internet-based search, it seems to me that this would not only be fair but a wise approach as well.
8. Document the decision
Once the Internet-based searches are completed and any pertinent information given to the decision-maker in your organization, ultimately, the final decision on hiring should be set out somewhere in clear terms. Explain your rationale for choosing a particular candidate, rejecting another. You want to be prepared to establish why you made the decision(s) you did and to show that inappropriate considerations, specifically prohibited grounds under human rights legislation, played no factor.
Parting Thoughts
While I started this series of posts in response to a question from a reader, in the end, my purpose turned out to be much broader than that (if the length of my posts didn't tip you off to that before, now you know!). Once I started looking into this issue and learned that there were Canadian employers out there already doing these types of searches, it became concerning to me that they may well be doing them without fully understanding their legal risks.
I hope that I have been able to arm you with information so you know what the issues are (at least as they appear to be at this early stage) and that I have spurred you to think about how to address them if you choose to make the decision to venture into conducting Internet-based searches on your job candidates. At the very least, you should think first, do second and most importantly, do after you have received the appropriate legal advice specific to your situation.
Until next time!
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Donna M. Seale B.A., LL. B.
Human Rights Lawyer
and Educator
