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Is the failure to provide parental leave “top-up” benefits discriminatory?

canadian-moneyIn Adekayode v Halifax (Regional Municipality), 2015 CanLII 13866, a Nova Scotia Human Rights Commission Board of Inquiry recently considered a complaint alleging that an employer’s failure to provide a top-up of employment insurance benefits for biological parents during a parental leave was discriminatory.

The complainant, Mr. Adekayode, was a unionized employee, and his collective agreement provided top-up benefits to employees who took adoption leave, but not to employees who took a parental leave in respect of a biological child. Mr. Adekayode alleged that this constituted discrimination on the basis of family status. Both the employer and the union took the position that the differential treatment between biological parents and adoptive parents was not discriminatory.

In considering the complaint, the Board of Inquiry provided useful guidance on the meaning of discrimination in Nova Scotia, and the protected ground of “family status”.

The Board of Inquiry held that, based on the definition of discrimination in the Nova Scotia Human Rights Act, in order to make a finding of discrimination, there must be both a distinction related to a protected characteristic, and a particular effect of that distinction.  With respect to the effect, the Board concluded that the distinction must impose burdens not imposed on others, or withhold or limit access to opportunities, benefits and advantages available to other individuals. The Board held that a distinction in treatment that does not result in that kind of effect is not discrimination within the meaning of the Nova Scotia Human Rights Act.

With respect to family status, the Board held that this prohibited ground of discrimination includes “the way the parent and child came to be in their relationship: whether by birth, adoption placement, foster placement, guardianship, voluntary role acceptance, or even by attachment.” (para. 17) It also includes “the entire scope of legal obligations of care, responsibility, and protection for a child that a person takes on when they enter into a parental relationship with a child.” (para. 17) Further, family status “comprehends the whole essential social relationship of obligation and dependence between those acting as parents, and those who are children, with respect to care.” (para. 20)

Based on this meaning of family status, the Board concluded that the Nova Scotia Human Rights Act prohibits discrimination based on how the parent/child relationship is created, and based on the care obligations created by the parent/child relationship.

In considering Mr. Adekayode’s complaint, the Board noted that there was a clear distinction drawn in the collective agreement between biological and adoptive parents: adoptive parents were entitled to the top-up of employment insurance benefits for 10 weeks at 75% pay, whereas biological parents were not entitled to any top-up. Further, this distinction was drawn based on how the parent/child relationship was created, which falls within the protected ground of family status. Finally, the distinction had the effect of withholding access to benefits from biological parents. Therefore, the Board found that the denial of top-up benefits to biological parents was discriminatory because it imposed a disadvantage on them based on their family status.

With respect to remedy, the Board found that the real injury that needed to be rectified was Mr Adekayode’s loss of the opportunity to be home with his son, and noted that is a difficult injury to address through an enforceable remedy. The Board found that the most appropriate remedy was to award that Mr. Adekayode was entitled to parental leave with top-up at a time when his son was not expected to be in regular attendance at public school. The Board held that the employer and the union should share the cost of the leave because they both shared responsibility for the discriminatory provisions of the collective agreement.

This case provides important guidance on the meaning of “family status” in Nova Scotia. It is one of very few cases in the province that have considered this issue. It also highlights for the employers the importance of carefully considering their leave policies to assess whether employees on leaves are treated differently on the basis of a prohibited ground of discrimination. If so, there is a risk that the employer could be found liable for discrimination.

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Alison J. Bird

Employment Lawyer at Cox & Palmer
Alison Bird is a lawyer practicing in Halifax with the Atlantic regional law firm, Cox & Palmer. Alison is growing her practice in the areas of labour & employment law and litigation. Alison is a frequent presenter on employment law topics and recently presented on the challenges being faced by employers dealing with changing demographics in the workplace. Read more
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