In a recent decision the BC Court of Appeal determined that a change in a term or condition of employment imposed by an employer that results in a serious interference with a substantial parental or other family duty or obligation of an employee may amount to discrimination under Section 13(1) of the Human Rights Code. Section 13(1) prohibits discrimination on the basis of “family status”, among other prohibited grounds.
The case before the Court was an appeal by a Union from a decision of an arbitrator [reported at (2002) 110 LAC (4th) 289] involving a claim of discrimination in employment based on family status. The grievor had four children, including a child with severe medical and behavioural problems requiring specific parental and professional attention. In July of 2001, the Employer notified her that for operational reasons, her work hours would be changed from 8:30 a.m. to 3:00 p.m. to 11:30 a.m. to 6:00 p.m. The grievor worked the new hours for a few weeks before claiming that the new shift interfered with her child care obligations. The Employer informed her that the new hours would be maintained. When she received the letter stating that her new hours would continue, the grievor claimed she experienced a severe anxiety or panic attack. She was diagnosed with post-traumatic stress disorder and never returned to work.
At arbitration the Union argued that family status includes the parent-child relationship, and that the Employer had a duty to accommodate the employee’s hours of work so that she could better care for her child. The arbitrator found that the Union had failed to make out a prima facie case of discrimination and dismissed the grievance. He interpreted the words “family status” in Section 13(1) as referring to the status of parent and child, and not to the individual circumstances of a family’s needs, such as those concerning childcare arrangements.
On appeal, the Court concluded that the arbitrator’s construction of the term was too narrow and would not address serious negative impacts that some employer decisions might have on the parental and other family obligations of employees. On the other hand, the meaning of “family status” cannot be an open-ended concept, as that could potentially cause great disruption and mischief in the workplace.
The Court went on to find that whether the particular conduct of an employer does or does not amount to discrimination on the basis of family status will depend on the circumstances of each case. In this regard, the Court stated:
“In the usual case where there is no bad faith on the part of the employer and no governing provision in the applicable collective agreement or employment contract, it seems to me that a prima facie case of discrimination is made out when a change in a term or condition of employment imposed by an employer results in a serious interference with a substantial parental or other family duty or obligation of the employee. I think that in the vast majority of situations in which there is conflict between a work requirement and a family obligation, it would be difficult to make out a prima facie case.”
In the case at hand, the Court concluded there was, in fact, a substantial parental obligation and the decision of the Employer to change the grievor’s hours of work resulted in a serious interference with the mother’s ability to fulfil that obligation. In addition, the grievor’s situation was further complicated by her own subsequent illness. The Court remitted the matter to the arbitrator to determine the issues of accommodation and, if necessary, damages.