When a child comes into a family (through birth or adoption) and where the caregivers are employed (e.g., working for pay), there will need to be some kind of arrangement for leave from the employment in order to care for the child. Most families require that at least some portion of the leave is paid so that they can afford to stay home and raise their children. The need for accommodation for parenting requirements by employers continues as the child or children get older.
The law is quite clear about employment leave and parenting. Across Canada, every jurisdiction has employment or labour standards that deal with parental leave. Alberta’s Employment Standards Code provides that employees who have worked with the same employer for at least 52 consecutive weeks and are pregnant, are entitled to take unpaid maternity leave (from near the end of pregnancy to immediately after the birth of the child) of up to 15 weeks. Altogether, birth mothers can take up to 52 weeks of leave with their job protected (15 weeks of maternity leave and 37 weeks of parental leave).
Fathers and/or adoptive parents (mothers or fathers) are eligible for up to 37 weeks of unpaid job-protected parental leave. Parental leave can be taken by one parent or shared between two parents, but the total combined leave cannot exceed 37 weeks. To be eligible for maternity and /or parental leave, employees must have been employed for 52 consecutive weeks with their employer. Human rights legislation prevents employers from arbitrarily terminating a pregnant employee who has less than 52-consecutive-week employment, because this would be a form of gender discrimination prohibited under the Alberta Human Rights Act (See: “Employment Standards: Rights and Responsibilities at Work: Maternity Leave and Parental Leave” March 2011) While the Employment Standards Code does not provide for salary during the leave period, some employers may provide for payment under agreements or other benefits packages.
…the most recent advancements with respect to leave and benefits involve recognition of both parents’ entitlement to leave and benefits, plus the lengthening of leave and benefit periods for adoptive parents.
The federal law that deals with benefits during maternity/parental leave is the Employment Insurance Act. To qualify for Employment Insurance (EI) benefits, there are a number of requirements: individuals must have paid Employment Insurance (EI) premiums, have their normal weekly earnings reduced by more than 40% and have accumulated at least 600 hours of insurable employment during the qualifying period—or, if you are a self-employed fisher, you have earned enough money during the employment qualifying period (i.e., $3,760 from fishing during the 31-week qualifying period immediately before the start of the benefit period). The qualifying period is the shorter of the 52-week period immediately before the start date of your EI period, or the period since the start of a previous EI benefit period, if that benefit period started during the last 52 weeks. EI maternity benefits are only available to the biological mother who is unable to work because she is pregnant or has recently given birth. EI parental benefits are payable only to the biological or adoptive parents while they are caring for their newborn or newly adopted child. To receive parental benefits, parents must sign a statement declaring the newborn’s date of birth, or the child’s date of placement for the purposes of the adoption, and the name and address of the adoption authority. There are special rules for applying for EI benefits if you are self-employed. (See: “Employment Insurance Maternity and Parental Benefits” January 2012.)
Thus, the most recent advancements with respect to leave and benefits involve recognition of both parents’ entitlement to leave and benefits, plus the lengthening of leave and benefit periods for adoptive parents. Also, it is no longer permissible under human rights law to discriminate against pregnant women.
Human rights law has recently added the ground of “family status” in several jurisdictions. Thus, in employment settings, discrimination on the basis of family status is not permitted. Recent case law indicates that there are issues surrounding what discrimination on the basis of “family status” actually entails. These issues 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. For a detailed description of the Seeley case, please see an earlier LawNow article: “New Developments in the Area of Discrimination on the Basis of Family Status” (2013) 37 (6). In the Seeley decision, the most significant finding of the CHRT is its interpretation of “family status”.
The Seeley case was ultimately decided by the Federal Court of Canada. The 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 and 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. The Federal Court dismissed CNR’s appeal.
Human rights law has recently added the ground of “family status” in several jurisdictions. Thus, in employment settings, discrimination on the basis of family status is not permitted.
Justice Mandamin of the Federal Court noted that the Canadian Human Rights Act does not define “family status”. He noted that in order to have proper regard to “family” one must consider children and the relationship between parents and children. Parents are obligated to care for their children and if Parliament had intended to exclude childcare obligations from “family status” it would have done so clearly. This interpretation of “family status” as including childcare obligations is within the scope of the ordinary meaning of the words. Thus, he ruled that the CHRT’s interpretation of the meaning of “family status” was reasonable.
In determining whether there was a prima facie case of discrimination based on family status, Justice Mandamin said that the following questions needed to be answered:
a. 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;
b. 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;
c. 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?
Clearly, contextual factors in individual cases of discrimination are significant. Justice Mandamin found the following factors to be relevant to his finding that there was discrimination on the basis of family status:
- 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.
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 finally;
- the CHRT’s award of damages was also reasonable.
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.
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. The tribunal will consider the steps that the employee took to minimize the obligations that were imposed on his or her family responsibilities. The tribunal will also consider 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 the tribunal will consider, which in turn seeks to balance the responsibility for childcare issues between the employer and the employee.
Although families are an essential part of our communities in Canada, the law and policies surrounding the birth or adoption of a child and the subsequent family responsibilities of caregivers is quite complex and continuously developing to adjust to the changing realities in families.
About Linda McKay-Panos
