In most jurisdictions in Canada, human rights legislation prohibits discrimination on the basis of “family status.” Until recently, few cases were brought alleging discrimination under this branch. However, recent decisions across several jurisdictions have made it clear that employers must be attentive to this ground of discrimination or risk exposing themselves to significant liability.
- What workers must prove to establish “family status” discrimination in the childcare context,
- What is required to show “undue hardship” in the “family status” context, and
- Practical strategies for managing accommodation requests on this ground.
As stated above, recent cases have largely dealt with employee requests for accommodation due to their family status. These complaints are similar in structure to requests for accommodation by disabled employees. These family status complaints argue that by complicating employees’ abilities to fulfil their obligations to their families, employer policies are discriminating against workers with families.
Such accommodation poses serious challenges to employers attempting to efficiently schedule their workforces. It adds another factor that must be taken into account in organizing the workforce. However, unlike what is often the case in disability-related accommodations, in many workplaces the majority of employees may be subject to these familial pressures.
Until recently, few reported decisions dealt with such demands for accommodation. Beginning approximately ten years ago, the volume of cases dealing with this type of complaint has increased. Unfortunately, courts have not reached a consensus on how to deal with them. Three tests have emerged, with their roots in cases in British Columbia, Ontario and the Federal jurisdiction. Each test has used different and vague definitions for what exactly are employees’ rights and employers’ obligations when it comes to family status.
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