A recent decision of the BC Human Rights Tribunal serves to illustrate the confusion facing employers attempting to determine their accommodation obligations when it comes to family status complaints.
An employee was terminated after he asked for time off to take his child to a medical appointment. He filed a human rights complaint alleging discrimination on the basis of his family status. The employer argued the termination was because of the complainant’s sub-standard job performance and that his family status was not a factor in the termination. The employer applied to have the complaint dismissed on the basis that there was no reasonable prospect that the complaint would succeed.
In disposing of the application, the Tribunal began by noting that family status, like the other enumerated grounds of discrimination under the Code, is to be interpreted broadly. Family status includes both the "absolute status of being a family member...and the relative status of being in a particular family relationship". According to the Tribunal, the complaint fell within those parameters and, therefore, the Tribunal had jurisdiction to hear the complaint. Notably, the decision did not refer to the test for establishing a prima facie case of discrimination on the basis of family status as set out by the BC Court of Appeal in Health Sciences Association of BC v. Campbell River and North Island Transition Society. In that case, the Court indicated that a prima faciecase of family status discrimination is made out when an employer changes in a term or condition of employment which results in a serious interference with a substantial parental obligation.
The Tribunal then considered whether there was a reasonable prospect the complaint would succeed. To succeed at hearing, the complainant would have to show, on a balance of probabilities, that his employer had treated him adversely and that there was at least a reasonable inference that the adverse treatment was due to his family status. The Tribunal noted that the employer had never given the complainant feedback that his performance was lacking. On this basis, it concluded there was at least an inference that the complainant was terminated because he had requested time off for his child’s medical appointment. As a result, the Tribunal declined to dismiss the complaint.
Importantly, there was no mention in the Tribunal’s decision of Family Responsibility Leave under the BC Employment Standards Act which requires employers to provide up to five days’ unpaid leave per year to meet family responsibilities related to the care, health or education of a child in the employee’s care or to the health of a member of the employee’s immediate family.
While this recent decision may signal a shift in the Tribunal’s reasoning with respect to family status cases, we note that the decision in Campbell River has not been overturned by the Supreme Court of Canada and remains good law in British Columbia. Federally regulated employers should review a recent decision by the Federal Court on accommodation of family status.
If you have any questions regarding the information in this article, please contact Lindsie Thomson.