New Developments in the Area of Discrimination on the Basis of Family Status

Note: a portion of this article is reproduced with permission from Ablawg.ca “Accommodation for Family Status Required by Federal Human Rights Tribunal for Three Alberta Women”

Ablawg December 22, 2010

humanrightsAll provinces and territories, and the federal government, have human rights legislation to address discrimination. The ground of family status is relatively new.

It was thought that “family status” was fairly straightforward – a person is discriminated against on the basis that they are related to another person. However, recent case law indicates that there are issues surrounding what discrimination on the basis of “family status” actually entails. The issues also illustrate a tension that has developed in the law of discrimination about whether it is a law or entity that is discriminating or whether it is “just the way our society operates and the choices people make” that have the effect of discriminating against a person. The Seeley case (Canadian National Railway v.Denise Seeley and Canadian Human Rights Commission, 2013 FC 117 (Seeley, Fed Ct)) demonstrates these developments.

Denise Seeley, Cindy Richards and Kasha Whyte all lived near their home terminal in Jasper, Alberta. Kasha Whyte was a single parent with sole custody of her (then) five-year-old son; Cindy Richards was the divorced parent of two children, then aged 12 and 11; and Denise Seeley was married with two children, then aged six and twenty-one months.

In February 2005, CNR experienced a severe shortage of employees in its Vancouver terminal. The complainants were asked to work in Vancouver pursuant to their Collective Agreement, which provided that “non-protected employees” could be required to work at another terminal in the Western region upon 30 days’ notice, unless there was a satisfactory reason for them to fail to do so. The Complainants were required to move to Vancouver for the duration of the shortage, which was to be of unknown length.

Each Complainant received a recall notice, which provided that they had 15 days to report to Vancouver, contacted CNR communicating her inability to cover the Vancouver shortage due to parental responsibilities; and asked to be excused from the transfer on a compassionate basis. CNR ordered them to report to the Vancouver terminal by July 2, 2005 or they would forfeit their seniority rights and their employment with CNR would be terminated. All three Complainants failed to report to Vancouver and were fired on July 4, 2005.

The Complainants filed complaints with the Canadian Human Rights Commission, arguing that the CNR had discriminated against them under sections 7 and 10 of the CHRA. Michel Doucet, a member of the Canadian Human Rights Tribunal (CHRT), upheld the complaints. He concluded that the complainants faced a “serious interference with [their] parental duties and obligations” if they were forced to work in Vancouver, and that childcare issues constitute a parental responsibility that falls within the ground of “family status”. In each case, the remedy included reinstatement without loss of seniority, payment of lost wages, $15,000 for hurt feelings, $20,000 for willful discrimination and implementation of non-discriminatory policies.

Once a Complainant has established a prima facie case of discrimination, the onus shifts to the employer to demonstrate that the discriminatory standard or action is a bona fide occupational requirement (BFOR). The Supreme Court of Canada adopted a three-part test for the BFOR in British Columbia (Public Service Commission) v. BCGEU, [1999] 3 SCR 3 (“Meiorin“).

Seeley, Whyte and Richards focused on the third aspect of the Meiorin test – whether the impugned standard was reasonably necessary for the employer to accomplish its purpose. At this stage the employer must establish that it cannot accommodate the complainants (and others affected by the discriminatory standard) without experiencing undue hardship.

CNR argued that it had accommodated the Complainants by providing a four-month extension to the time that they had to report to Vancouver in order to permit them to make the necessary childcare arrangements. The CHRT noted that this accommodation was “not in any way a meaningful response to the Complainant’s request” or to her personal family situation, and that the witnesses provided by CNR did not consider family status matters that involve parental responsibilities as a ground of discrimination that required any form of accommodation. Further, CNR did not apply its own comprehensive Accommodation Policy, which specified that accommodation “means making every possible effort to meet the reasonable needs of employees”.

CNR also argued that it would have encountered undue hardship if it had accommodated the Complainants. Since the vast majority of their employees are parents, accommodating the Complainants would grant them “super seniority” based upon their status as parents. However, there was no evidence that CNR had multiple requests for accommodation. To argue that accommodating a complainant in one instance will open the floodgates to claims by other employees is “unacceptable”.

The CNR also failed to provide evidence that accommodating the Complainants would cause undue hardship in the form of costs. In fact, CNR’s Accommodation Policy said: “The costs incurred must be extremely high before the refusal to accommodate can be justified”. Thus, CNR was not able to rely on the BFOR defence and the CHRT found that the Complainants had been discriminated against on the basis of family status.

The CNR appealed the Seeley case to the Federal Court of Canada. CNR argued that this case really dealt with the question of whether balancing family life and employment duties will be transferred from the home to the workplace. It argued that the CHRT had been mistaken when it equated family status with a parent’s choice as to how to define and meet his or her childcare obligations.

Justice Mandamin of the Federal Court dismissed CNR’s appeal. He noted that the Canadian Human Rights Act does not define “family status” and also suggested that the legal cases to date illustrated two distinct lines.

In determining whether there was a prima facie case of discrimination based on family status, and in attempting to reconcile the two lines of cases, Justice Mandamin said that the following questions needed to be answered:

  • does the employee have a substantial obligation to provide childcare for the child or children; in this regard, is the parent the sole or primary care giver, is the obligation substantial and one that goes beyond personal choice;
  • are there realistic alternatives available for the employee to provide for childcare: has the employee had the opportunity to explore and has explored available options; and is there a workplace arrangement, process, or collective agreement available to the employee that may accommodate an employee’s childcare obligations and workplace obligations;
  • does the employer conduct, practice or rule put the employee in the difficult position of choosing between her (or his) childcare duties or the workplace obligations?

The following factors were considered by Justice Mandamin to be relevant to a finding that there was discrimination on the basis of family status: Human Rights Law

  • Ms. Seeley is the primary caregiver for two children of tender age;
  • her husband works full time and is the breadwinner;
  • she had considered whether childcare was available in nearby Hinton, AB;
  • CNR never provided necessary information for exploring whether childcare options were available or feasible in Vancouver; and
  • a realistic assessment of her circumstances discloses she would have significant difficulty in fulfilling her childcare obligations in responding to an indefinite recall assignment for the Vancouver shortage.

Thus, Ms. Seeley’s specific parental childcare obligations and CNR’s response to her request for an extension to address possible options all resulted in prima facie discrimination on the basis of family status.

In addition, Justice Mandamin found that CNR never considered the question of accommodation under the collective agreement before firing Ms. Seeley; the CHRT’s finding that CNR had not adequately responded to Seeley’s request for accommodation was reasonable; and the CHRT’s award of damages was also reasonable.

It appears, then, that childcare responsibilities are clearly part of “family status” and that this ground of discrimination should be given equal footing with the other grounds. Tribunals will consider the steps that the employee took to minimize the obligations that were imposed on his or her family responsibilities; the individual circumstances of the complainant; the nature of the conflicting responsibilities; and the barriers that are in place. The employer’s duty to accommodate will be tempered by the three factors that a tribunal will consider, which seek to balance the responsibility for childcare issues between the employer and the employee.

Speak Your Mind

Authors:

Linda McKay-Panos
Linda McKay-Panos, BEd. JD, LLM is the Executive Director of the Alberta Civil Liberties Research Centre in Calgary, Alberta.
 


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