Recently the test for prima facie (at first sight, apparent) discrimination based on family status in B.C. was clarified by the province's Court of Appeal. In BC, the following characteristics are protected under human rights law: Indigenous identity, race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation, gender identity or expression, and age .
Human rights protection is relatively similar across Canada.
These grounds are not defined in the B.C. Human Rights Code. Rather, courts are given flexibility in defining the characteristics, as was the case in a recent decision of the BC Court of Appeal in the Gibraltar Mines case.
A summary of the case can be found here, where the court found that a prima facie case of discrimination based on family status can be established when a term or condition of employment amounts to serious interference with a substantial parental or family obligation. Prior to this judicial clarification, employers risked running afoul of human rights legislation if they created a change to a term or condition of employment that seriously interfered with parental or familial obligations. The Gibraltar case clarified that discrimination doesn’t require a change in employment terms or conditions - a change in an employee’s circumstances is sufficient.
It is now clear that a change in an employee's circumstances is enough to trigger a serious inference with a substantial parental duty meeting the threshold for establishing prima facie discrimination based on family status. Any family obligation that is impacted by employment could be grounds for human rights discrimination, most often this is seen in parental child care obligations. In the Gibraltar case it related to an employee after giving birth to her first child. The employee and her husband worked for Gibraltar Mines and were seeking changes to their schedules to accommodate child care when the mother returned from maternity leave. The parties could not agree on a suitable accommodation, resulting in the complaint and an eventual finding of a human rights violation.
The impact of this case is significant in that it opens the door to an increase in human rights recognition and invites opportunities for gender equality. The requirement for a “serious” interference with a substantial parental or other family obligation remains, providing a high threshold for employees to establish discrimination.
However, the clarification that a change in an employee's circumstances could amount to discrimination provides an acknowledgement of the reality that family obligations and responsibilities can be impacted as circumstances change, especially as it applies most often to women. It’s not difficult to see how many caregivers this would impact, and given the fact that most caregivers are women, it’s easy to see how this has perpetuated gender inequality in the workplace. Many people could be affected by this clarification of the law.
What does this mean for employers?
The removal of the requirement that a ‘term or condition of employment has changed’ allows for the consideration that something in the employee's experience or personal circumstance has changed, resulting in “serious” interference with a substantial parental or other family obligation to establish prima facie discrimination. Importantly, an employer would still need to demonstrate that accommodating the employee would result in undue hardship.
This means that accommodation requests will need to be seriously considered before refusal. Accommodation is a legal duty imposed on employers. Employers are required to accommodate employees up to the point of undue hardship. Undue hardship is generally assessed on the facts of each case. Employers will need to fine tune their understanding of accommodation from a practical point of view to fulfill their duty.
Prior to this ruling, employers in B.C. were concerned with changes to jobs, for example, changing an employee's shifts or job location, or requiring significant travel. But now employers will need to assess what types of accommodation they can provide their employees - and when those accommodations will be required to avert a human rights complaint.
It seems apt to note that most discrimination in employment occurs at the hiring process. It would not be far-fetched for some employers to try to avoid managing hypothetical accommodations for their employees by hiring people who seem not to be at risk of changing personal circumstances. Stranger things have happened. Either way, we have robust human rights protections in Canada. Hopefully this clarification allows workplaces to evolve into an inclusive environment that supports all of their employees.
Elisabeth Cooke is the CEO of Dignii Technologies. She’s also an adjunct professor at the UBC Sauder School of Business. Dignii can be found at www.dignii.com and Elisabeth can be reached at [email protected].