It is a fundamental rule: an employer may not discriminate against an employee on any of the protected grounds in human rights legislation. Over time, litigation has expanded the meaning and scope of these protected grounds. One of the most litigated areas of these is family status. The meaning of this term and what conduct on the part of an employer will constitute discrimination has evolved over time – and continues to evolve. Further complicating the topic is the lack of a consensus on the test for discrimination on the basis of family status. A different test applies at the federal level, in Ontario, and in British Columbia.
A recent decision of the British Columbia Court of Appeal (“BCCA”) appears to have changed the criteria for the type of employer conduct that will constitute prima facie discrimination on the basis of family status.
In British Columbia, the test for whether an employer discriminated against an employee on the basis of their family status was set out in the BCCA’s 2004 decision of Health Sciences Assoc. of B.C. v. Campbell River and North Island Transition Society (“Campbell River”). There, the Court held that to establish discrimination on the basis of family status, the complainant must show that the employer’s conduct caused them to suffer “indirect or adverse effect discrimination”. This was read to mean that the employer had to have changed a term or condition of their employment and that this change caused a serious interference with a substantial parental or other family duty.
After Campbell River, the law in BC appeared to be clear. For an employee to have been discriminated against on the basis of their family status there needed to be a unilateral change implemented by the ER, and this had to create negative consequences for the employee.
The decision in Campbell River did not address the other half of the equation – what if the employee’s personal circumstances change and the employee’s new situation causes them to encounter an adverse impact due to the employer’s existing policies? In British Columbia (Human Rights Tribunal) v. Gibraltar Mines Ltd. (“Gibraltar”), the BCCA answered this question.
The facts and the tribunal decision
In Gibraltar, the employee and her spouse both worked the same twelve hour shift for the same employer. After their first child was born, the employee approached her employer and requested a workplace accommodation to change her and her spouse’s work schedules to facilitate childcare arrangements. The parties exchanged proposals but could not find a suitable accommodation. The employee then filed a complaint with the British Columbia Human Rights Tribunal (“BCHRT”), alleging discrimination based on marital status, sex, and family status.
The BCHRT dismissed the marital status and sex aspects of the complaint, but proceeded with its analysis of whether the employee had been discriminated against on the basis of family status. The BCHRT reviewed Campbell River to determine whether a change in employment terms implemented by the employer was a precondition to a finding of discrimination, or whether this could also stem from a change in the employee’s circumstances. The BCHRT found that Campbell River did not stand for this proposition – and refused to dismiss the complaint on this basis.
The BCHRT held that the employer’s refusal to modify the employee’s work schedule created a serious inference with a substantial parental obligation. It also found that this could not be resolved on the basis of written evidence, and that a hearing was required to apply the Campbell River test.
The employer applied for judicial review of the BCHRT decision on two grounds, asserting that the BCHRT had misinterpreted Campbell River and that it had acted in a patently unreasonable manner.
The Chambers Judge addressed the first of these grounds, reviewing the BCHRT’s decision on a correctness standard. The Chambers Judge found that she was bound by stare decisis to hold that the first part of the Campbell River test required the employer to change the terms and conditions of employment before discrimination could be found. The Chambers Judge concluded that the Tribunal’s interpretation of the test for prima facie discrimination in employment was incorrect and quashed the decision.
The BCHRT appealed the Chambers Judge’s decision. On appeal, a five member panel of the BCCA reviewed the earlier holdings as well as its own holding in Campbell River. The panel noted that in Campbell River, it had not addressed whether a change in a term or condition of employment was the only circumstance where a prima facie case of discrimination could be made out.
The Court held that the central factor in Campbell River was an employer’s decision and the impact of this decision on the employee. It noted that an employer may change the terms and conditions of employment, causing an adverse impact on an employee. However, it also found that an employer may cause a similar adverse impact by not changing a term of employment to address an employee’s needs. The Court noted that “[t]he discrimination inquiry is concerned with the impact of the employment term on the employee, not the intention of the employer”.
The Court reviewed the Human Rights Code and found that nothing in it stated that a change in the terms of employment was required to trigger a prima facie case of discrimination. Instead, this required that a person must not “discriminate against a person regarding employment or any term or condition of employment” because of the person’s family status.
The BCCA set aside the decision of the Chambers Judge and remitted the matter to the Supreme Court of British Columbia to address the balance of the judicial review.
The Court appears to have confirmed that the equation works from both sides when it comes to discrimination on the basis of family status. An employer does not need to change its operations or policies for an employee to suffer an adverse impact. Instead, the employee’s circumstances may shift, requiring the employer to accommodate these. Where the employer fails to provide this accommodation it may be discriminating against the employee on the basis of that employee’s family status. A refusal to make a change can trigger a human rights breach just as making a change can do so.
Due to British Columbia’s unique take on family status discrimination, it is unclear what impact, if any, this decision may or may have outside of the province.
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- Twenty-four months’ notice in the absence of exceptional circumstances - March 3, 2023
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