With 41 percent of the Canadian labour force being women and men of childbearing age (Statscan table 282-0002 (2104)), and with the proportion of seniors in the population rising and expected to continue to rise until 2031 (at which point it could reach 25 percent of the population)(StatsCan 11-402-X), the duty to accommodate employees on the basis of family status is an issue which will become a critical one over the coming years for almost all employees and employers.
In Canada, all provinces and territories except New Brunswick specifically protect employees from discrimination on the basis of family status in their human rights legislation. In most jurisdictions “family status” is defined as being in a parent and child relationship (in most cases including step and adoptive relationships). A few jurisdictions, including Alberta and Nunavut, have a broader definition which includes anyone “related by blood, marriage or adoption.” The Canadian Human Rights Act also includes protection on the basis of family status for those in federally-regulated organizations.
Obviously, “being in a parent and child relationship” covers employees with children and employees who are children of living parents. What it means for employees is continued and ever-harder struggle for the work-family balance. What it means for employers to accommodate an employee on the basis of family status is trickier.
In late 2014, the Federal Court of Appeal held in Johnstone v. Canada (Border Services) that an employer must accommodate an employee’s child care scheduling needs and also ruled that a prima facie case of discrimination must be shown, as determined by a four part test which included:
The above-noted test, although useful in offering employers some direction, leaves huge unanswered questions, including how the criteria might apply to caring for aging parents, and how “legal responsibility” or “reasonable alternative solutions” can be assessed, especially in cases where the parent has more than one child, or the child has more than one parent.
The Ontario Human Rights Commission brochure “Human Rights and Family Status” suggests that some examples of accommodation for family status in the workplace are providing flexible scheduling, allowing employees to take leaves of absence to care for family members who are aging, ill or have a disability, and allowing alternative work arrangements, all of which make one wonder if those without children or aging parents will be the ones with the least desirable shifts and schedules. So, it may only be a matter of time before the reverse argument is made that employees without such responsibilities are also being discriminated against on the basis of their family status.
I will be further exploring the issue of employer responsibility for employee family choices in future blog posts, but for now employers should review their policies on flexible work schedules, hiring of family members, and workplace accommodation to ensure that they are all accommodating of human rights protection on the basis of family status.
See B2.11 — Employment of Relatives, B2.17 — Flexible Work Schedules, and E.5.21 — Accommodation on the Basis of Family Status in the Human Resources PolicyPro published by First Reference for more.
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