In some Canadian jurisdictions, anti-nepotism policies, or policies that are designed to exclude family members from the workplace just because they are family members, will automatically be considered prima facie discriminatory on the basis of family status or marital status (which ground applies will depend on the circumstances).  [I say some, but not all, jurisdictions because in Ontario, for example, an exception has been written into the Ontario Human Rights Code to permit such policies in particular circumstances].

If, however, you happen to run a business in a province like Manitoba where no such exception applies, and you wish to establish such a policy in your workplace you’re going to have to be able to demonstrate the policy is a bona fide occupational requirement.  Or, putting it very simply, that the policy is clearly necessary for your particular business.

So, how exactly do you figure out if your anti-nepotism policy (or the one you’re wishing to implement) is going to pass the mustard with a human rights commission?  Well, there are two cases I’ve come across that provide some helpful guidance on that front.  I thought I’d pass them along — why keep all this interesting stuff to myself??  It’s a longer post than usual, but hope that you will find it well worth the read.

Case #1:  Greater Victoria Public Library v. Canadian Union of Public Employees, Local 410 (Migliorini Grievance) (2004), 135 L.A.C. (4th) 38 (B.C.C.A.A.) (Jackson, Arbitrator)

FACTS:

• two sisters worked for the Greater Victoria Public Library.  The grievor was an auxiliary employee while her sister was a permanent employee.  Both were members of CUPE.
• In 1992, Library management decided that as it was becoming a larger institution and there were more and more family members on staff it wanted to be fair to everyone in how family relationships were handled.  As a publicly funded organization, Library management was concerned about the “significant potential for abuse, involving monetary compensation” if family members were allowed to be directly supervised by a close relative.  A Family Members Hiring Policy was established.  It provided that relatives of board members and of current library employees could be hired but not where there was a supervisory/subordinate relationship.  In such an instance, one of the employees would be “transferred to a comparable position in another department at the first opportunity.”
• The grievor worked for the Library for a number of years as a page and was a valued employee.  In 2001, she and her sister (who was a branch clerk) were both employees at a particular branch of the Library.  The grievor worked 30 hours a week Monday to Friday.
• The Branch Clerk Supervisor position was posted on a temporary basis to fill a maternity leave from September 2001 to June 2002.  The Supervisor was responsible for, among other things, scheduling the pages. The grievor’s sister applied for the position and was successful.  Her elevation to supervisor placed her and the grievor in a supervisory/subordinate relationship.
• In early September, the grievor was advised that, pursuant to the Policy, she would be transferred.  While efforts were made to find a suitable alternate schedule of hours for the grievor at another location, ultimately what was offered was a reduced number of hours involving work at two different library branches, one of which involved potentially physically difficult work for the grievor due to a previous workplace injury as well as increased travel.  The grievor was unhappy with the efforts made to find her alternative work, she felt she had been treated unfairly and she declined to accept the Library’s offer.  The grievor stopped working her usual schedule at the branch her sister worked at around September 20.  When she eventually did return to work it was at a few different branches of the library and on a schedule that she, for the most part, had arranged through her own efforts.
• Due to what she perceived as unfairness to the grievor, the sister resigned her position of Branch Supervisor.
• The grievor filed a grievance alleging that the Library’s Policy discriminated against her on the basis of family status.

DECISION:

• The arbitrator determined that the grievor was transferred simply because of her family status and that this constituted prima facie discrimination.
• The arbitrator conducted a review of previous cases that examined the application of anti-nepotism policies in the employment context, including the Supreme Court of Canada’s decision in Brossard and came to the following conclusions:
  • an anti-nepotism policy that has been unilaterally implemented by an employer and not agreed to by the union must be shown to be reasonable;
  • the fact that two employees are related is not enough to justify an anti-nepotism policy.  The relationship must be relevant to the ability of one of the individuals to perform their job duties;
  • in order to determine whether an anti-nepotism policy that is discriminatory on its face can be saved as a bona fide occupational qualification (“BFOQ”), the following questions should be asked:
    1. is the anti-nepotism policy, which was designed to avoid conflicts of interest, imposed honestly and in good faith?
    2. is the requirement that there be an absence of a conflict of interest between employees reasonably necessary to ensure the efficient and economic performance of the work?  The arbitrator focused on two criterion as needing to be satisfied in order to answer this question in the affirmative:
    • • whether the absence of real, potential or apparent conflicts of interest which the policy is designed to address is rationally connected to the employment;
      • whether the policy is properly designed to ensure it is met without placing an undue burden on family members to whom the policy applies.
  • An anti-nepotism policy that is justified as a bona fide occupational requirement may still be found to be discriminatory if it is applied in an overly rigid and unreasonable way. The particular circumstances of each situation must be looked at closely in order to determine how the policy should be applied in those circumstances and in light of the objective of ensuring conflicts of interest are avoided.  The employer must be able to show that it has accommodated the person to whom the policy applies to the point of undue hardship.
  • In applying the above tests to the grievor’s situation, the arbitrator determined that the policy could be justified as a BFOQ because:
    • The policy was imposed honestly and in good faith;
    • The policy was shown to be reasonably necessary:
    • There was a rational connection between the absence of a conflict of interest or an abuse of power for any supervisory employees in the performance of their duties and the Library’s desire to ensure it had fair employment practices and sound financial internal control procedures;
    • The policy was designed to limit its impact on the family members to whom the policy applied by: not excluding family members from employment with the Library; applying only to supervisory/subordinate relationships; simply requiring a transfer of one of the employees to another position rather than outright termination; protecting the transferred employee by requiring the new position to be comparable to the previous position and by recognizing it may take time to find such a position by only mandating a transfer “at the first opportunity”
  • However, the arbitrator further concluded that the policy was applied in a discriminatory manner in relation to the grievor because:
    • the employer rushed to transfer the grievor immediately rather than wait to the “first opportunity” to find her a position that was comparable in terms of hours of work, rates of pay and work schedule.  Overall, there was a failure on the part of the employer to make every possible effort and explore every possible option in an attempt to accommodate the grievor to the point of undue hardship;
    • the employer could have accommodated the grievor on a short-term basis by temporarily placing responsibility for any decisions about her scheduling, work assignments or direction in the hands of other senior employees at the branch;
    • the employer could have accommodated the grievor on a short-term basis by allowing the sisters to work together until a comparable position was found for the grievor.  The evidence showed that the scheduling of the pages was done by a formula rather than by the exercise of the Supervisor’s discretion.
  • The arbitrator held that the grievor was entitled to compensation representing the difference between wages she received after being taken off shift from the branch she worked at with her sister and wages she would have received had she remained working at that same branch.  The arbitrator retained jurisdiction to quantify general damages for violation of the grievor’s human rights if the parties were unable to agree on amount.

Case #2: 502798 N.B. Inc. v. New Brunswick (Human Rights Comm.) 2008 NBQB 390, aff’g in part (2007), CHRR Doc. 07-742 (N.B. Bd. Inq.)

FACTS:

• male employee was hired in April 2001 to work as a sales manager for employer, a waste management company that supplied portable toilets and performed septic tank services.  Male employee’s job required him to develop business amongst existing and new clients.  He could earn bonuses based on his sales figures.
• in January 2002, male employee became romantically involved with female office manager.  They moved in together a month later.  Although their relationship was common knowledge, at no time did the employer advise either the male employee or the female office manager that their employment might be in jeopardy as a result of their relationship.
• In September 2002, male employee was fired due to his common-law relationship with the office manager.  Employer concluded that because female manager was one of two financial control officers and was privy to confidential financial information, that placed her in a conflict of interest with the male employee as one of her duties was to input data regarding sales which were linked to employee bonuses.  Employer was of the view that the marriage-like relationship between the male employee and the manager was not an acceptable business practice and created an unacceptable business and financial risk.
• Male employee filed a complaint of discrimination on the basis of marital status.
• The New Brunswick Board of Inquiry concluded that a prima facie case of discrimination had been made out because:
  • Although living in a common-law relationship for only a short period of time, the employees in question were living in a relationship contemplated by the words “marital status” in the New Brunswick Human Rights Act;
  • The male employee was treated differently than other employees and terminated as a result of his relationship with the female manager and, as a result, was discriminated against on the basis of marital status
  • In applying the Meiorin test to determine if the discrimination was justified, the Board determined that the employer was unable to meet the test because:
    • The employer’s standard was that the female manager could not enter into a common law relationship with an employee due to the confidential nature of her position.  This standard was not rationally connected to the performance of the employees’ jobs;
    • There was no bad faith on the part of the employer in implementing its standard;
    • The standard was not reasonably necessary to accomplish the work-related purpose because the employer “overlooked relatively simple checks and balances” that could have been put in place to protect the business.  For example, the employer’s General Manager could have been asked to review the input of data relating to bonuses that the male employee might have been entitled to.
    • The Board ordered the employer to pay the male employee $2,000 in general damages, write the male employee a letter of apology and to participate in a one-day training course with the Human Rights Commission on the duty to accommodate.
    • The employer appealed the decision to the Court of Queen’s Bench.

DECISION:

• The Court found that the Board ruled correctly that the male employee and female manager were living in a common-law relationship and protected from discrimination on the basis of marital status;
• The Court disagreed with the Board’s analysis of the first step of the Meiorin test, ruling that the workplace standard at issue was to limit access to confidential information and to avoid creating a situation where the female manager could possibly be placed in a position of conflict between the interests of her employer and the interests of the male employee, who she was in a relationship with.  The purpose of the standard was identified as being to avoid unacceptable business and financial risks.  The standard was found to be rationally connected to the performance of the female manager’s job as her work involved inputting information that formed part of the basis on which the male employee’s bonus was calculated;
• Despite this error, the Court agreed with the Board’s overall conclusion that the employer could have accommodated the marital relationship here without incurring undue hardship.  As the General Manager already reviewed the female manager’s work, he could simply have specifically reviewed any data that would have affected the male employee’s bonuses.
• The Court upheld the damage award and the requirement of an apology letter but found that ordering the one-day training course was inappropriate.

WHAT TO TAKE FROM THE CASES:

1. The creation of anti-nepotism policies should be carefully considered by employers before they are implemented given their application will always give rise to a prima facie case of discrimination.
2. The fact that two employees are related will not be enough to justify application of an anti-nepotism policy.  The family or marital relationship in question must be relevant to the ability of one of the related individuals to perform his or her job duties.
3. Anti-nepotism policies should be designed to limit the impact on the affected family member.  A policy that overly favors the employer’s interests will not stand up to scrutiny.
4. Employers must be prepared to show that when they applied the policy, they gave consideration to the particular circumstances of the affected employee and they accommodated the affected employee to the point of undue hardship.  Rigid application of an anti-nepotism policy will cause an otherwise justified policy to fail.

That having been said, if you are currently a nursing mom or you’ve been a nursing mom and you feel that you have encountered discrimination in the workplace, feel free to post your comments here. If you’re an employer who has been uncertain as to how to address the needs of nursing mothers in your workplaces or you have concerns relating to such accommodations, I’d also invite you to post your comments.   This is an important discussion and I’d be interested in hearing about your thoughts and experiences.

“Interview Opportunity

The Manitoba Human Rights Commission is concerned about the lack of information the public has regarding women and breastfeeding.

Executive Director Dianna Scarth and Chairperson Jerry Woods are available for interviews regarding nursing mothers and human rights protections.

‘It is amazing that we still have to deal with this issue.  We hope to work with the City and other groups to bring awareness of the rights of breastfeeding mothers to the public, service providers and employers,’ says Ms Scarth.

Ms Scarth and Mr. Woods can also discuss one of the Commission’s latest publications Parents and Pregnant Women to clarify any other issues regarding the rights of pregnant and nursing mothers.”

If you have an interest in participating in this worthwhile project of the Commission, you should be in touch with Patricia Knipe, Communications Director at the Commission.  She can be reached at (204) 945-5112.

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:

• she could have had her son sleep at her ex-husband’s home on at least some of the nights that she had to work but there was no conflict with her ex-husband’s schedule;
• she could have had her son stay with relatives on the nights her ex-husband was unavailable.  While the grievor’s position was that such an arrangement was disruptive to her son and it made him unhappy, she did not provide evidence to show that her son’s well being would be negatively affected if he were to stay with relatives;
• she failed to provide evidence to demonstrate why she could not have her mother or other relatives stay over at her house to care for her son on the nights she had to work;
• she could have hired someone to stay in her home but the employee lead no evidence as to why this option was unavailable or, if available, so expensive as to be unreasonable.

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?

Image of “wife and baby” by Ywerd.

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:

1. there had been a change in a term or condition of employment imposed by the employer; and
2. 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:

1. what are the relevant characteristics establishing the employee’s family status?
2. 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?
3. 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?
4. 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:

1. 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;
2. 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;
3. 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);
4. 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.
5. 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.

The Facts:

The complainant, a 51 year old male, applied for a job with the respondent, a not-for-profit corporation which operates a seniors residence.  During his job interview with the manager of the seniors residence, the complainant disclosed that he had been twice convicted in the past for impaired driving but no longer had a drinking problem.  The manager told him this was not a concern given he was not required to have a driver’s licence for the job.   The complainant was hired, subject to a probationary period of six months, and required to sign an employment agreement.  This agreement provided that the complainant would obtain a criminal record check from the proper authorities.  The manager sought the criminal record check because, as a result of his duties, the complainant would be given a pass key to enter the suites of the seniors in the residence and do maintenance work.  Until he obtained a satisfactory criminal record check, the manager assigned another employee to do suite maintenance work.  While he was only doing part of his job at the time, the employer paid him full-time wages.

A few days after his hiring, the complainant requested a criminal record search from the police.  He received a report showing that he had a record with both the Winnipeg police and the national repository maintained by the RCMP.  The complainant told the manager about these results and she asked him the reason for the record with the RCMP, a question he did not have the answer to.

The manager wrote a letter to the complainant dated December 7, 2006 requesting a transcript of the convictions.  Although the complainant had indicated that it would take 150 days to get such a transcript, he was only given until December 31 to obtain the information.   In addition to the transcript request, the letter went on to detail the manager’s concerns about the complainant’s performance to date.  She felt that he was not putting sufficient effort into doing his daily duties.  She pointed out that he was being paid full-time even though he was only performing part of his job given the delay in obtaining a satisfactory criminal record check.

On December 14, 2006, and prior to the complainant obtaining a transcript of his criminal record, the complainant was advised that he was dismissed for poor performance.

The complainant contended that the respondent had discriminated against him on the basis of criminal record in two ways.  First, by requiring him to produce a transcript of his criminal record within a deadline that was impossible to meet as a condition of his continuing employment.  Second, by dismissing him before the time limit expired.  The respondent took the position that the complainant was dismissed due to inadequate job performance.

DECISION:

The adjudicator commenced his decision by briefly examining the issue of whether discrimination on the basis of a criminal record is actually covered by the Manitoba Human Rights Code.   “Criminal record” is not set out as a specific protected characteristic in the Code. Noting that he did not have the benefit of full argument for both parties to the complaint, the adjudicator concluded that for the purposes of this particular case he was prepared to accept that persons with criminal records could fall within section 9(1)(a) of the Code, a provision setting out a general definition of discrimination unrelated to any of the protected characteristics.  (For more on this issue, see my post “Clearing the air: criminal records, employment and the Manitoba Human Rights Code” ).

The adjudicator then went on to consider whether, based on the facts of this case, the respondent had discriminated against the complainant on the basis of his criminal record.  He found as follows:

• in relation to the general issue of whether the complainant’s criminal record was a factor in the respondent’s decision to terminate his employment, the adjudicator concluded that the respondent fired the complainant on the basis of his work performance only.  Whether he had a criminal record or not was found to play no role whatsoever in their decision.  The complainant was therefore treated on the basis of his personal merits.
• in relation to the December 7 letter specifically, the adjudicator did find that the complainant made out a prima facie case of discrimination.  The respondent gave the complainant an ultimatum to produce a transcript of his criminal record by December 31 or he would lose his job.  Given that the expert evidence at the hearing was that it could take 3 to 4 weeks to obtain a transcript from the Winnipeg police and 3 to 5 months to obtain a transcript from the RCMP’s repository, the respondent’s December 31 deadline made it impossible for the complainant, a person with a criminal record, to meet the condition and continue in his employment.
• On the issue of whether the respondent could demonstrate that the requirement of a satisfactory criminal record check was a bona fide occupational requirement, the adjudicator sided with the employer because:
  • the respondent was able to show that the transcript request was rationally connected to the job in question and adopted in good faith given that the complainant would be entering the suites of elderly residents who were vulnerable to theft and fraud;
  • as criminal record was not listed in section 9(2) of the Code as a protected characteristic and since the Code’s reasonable accommodation provision only applied to section 9(2) characteristics, the adjudicator concluded that the respondent did not have a duty to accommodate the complainant by allowing him time to obtain the record transcript.
  • Alternatively, the adjudicator concluded that more weight should be given to the potential hardship to an employer when considering the duty to accommodate in relation to alleged discrimination on the basis of criminal record.  On this basis, the conclusion was reached that it was not reasonable to expect the respondent to continue paying the complainant a full-time salary for only part-time work while awaiting the criminal record transcript which, due to no fault of the employer or the employee, would take a significant amount of time.  [It should be noted that evidence at the hearing suggested that a new system of searching criminal records in the national repository was introduced in 2008, after this complaint arose, reducing the turn-around time to one to six weeks].

WHAT TO TAKE FROM THIS CASE:

1. discrimination on the basis of a criminal record is likely covered by the Manitoba Human Rights Code;
2. if an employee can make out a prima facie case of discrimination on the basis of criminal record due to an employer’s requirement for the criminal record check or the rules that need to be followed for that criminal record check to be provided, an employer will need to demonstrate that the requirement of a satisfactory criminal record check is a bona fide occupational qualification;
3. in relation to proving a bona fide occupational qualification, it appears that on the basis of the wording of the Manitoba Code, an employer may not need to show that it has accommodated an employee alleging discrimination on the basis of criminal record to the point of undue hardship or, alternatively, that a reduced hardship test will be applied;
4. Regardless, employers are best advised to ensure that they are treating employees (or job applicants) with criminal records on the basis of personal merits relating to the job in question rather than on assumption or stereotype.