Family status – a ground of discrimination just like any other

Some recent cases (here, here and here) make the message very clear to employers: you cannot minimize or ignore requests for accommodation on the basis of family status. Such requests must be treated in the same way as requests for accommodation based on any other protected ground in human rights legislation. The Canadian Human Rights Tribunal recently decided that when Canadian National Railway (CNR) terminated three employees because they failed to accept a transfer to a new position out of province, the company discriminated against them based on the ground of family status. The women were given 15 days’ notice. They felt they could not fill the shortage and move due to their child care responsibilities.

• One mother had a young son who had just been diagnosed with respiratory difficulties and had scheduled appointments with specialists in the city
• One mother had a child-custody agreement that required 90 days’ notice for taking the children out of the city
• One mother was unable to make child care arrangements given that no information was provided about the duration of the stay or the station they would be working

When the mothers asked to be excused from the transfer requirement, CNR gave them a brief extension, but ultimately terminated them.

The tribunal ordered CNR to review its accommodation policy, especially in the area of family status, including parental obligations. The tribunal also reinstated the women and awarded them compensation for lost wages, pain and suffering ($15,000), wilful or reckless conduct ($20,000), along with costs and interest.

The tribunal commented on the way CNR treated the employees and responded to their requests; ultimately, CNR ignored the women and did nothing to accommodate them.

What employers can learn from these cases is that, when confronted with requests involving the ground of family status, discuss the situation with the employee and learn about the employee’s particular needs. Employers are recommended to be proactive and open when considering possible forms of accommodation. The duty to accommodate is significant and must be to the point of undue hardship.

Christina Catenacci
First Reference Human Resources and Compliance Editor

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Christina Catenacci, BA, LLB, LLM, Ph.D.

Christina Catenacci, BA, LLB, LLM, PhD, was called to the Ontario Bar in 2002 and has since been a member of the Law Society of Ontario. Christina worked as an editor with First Reference between 2005 and 2015 working on publications including The Human Resources Advisor (Ontario, Western and Atlantic editions), HRinfodesk, and First Reference Talks blog discussing topics in Canadian Labour and Employment Law. Christina obtained her Professional LLM Specializing in Labour Relations and Employment Law from Osgoode Hall Law School of York University in 2013, and recently earned her PhD in Law at the University of Western Ontario on October 23, 2020 in the area of privacy in the workplace.

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