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Family Status and Childcare Responsibilities: Approach with CautionJanuary 29, 2014 | Authored by: Paul Fairweather

An Alberta arbitrator recently determined that an employer had discriminated against a single mother on the basis of her family status by refusing to accommodate her child care responsibilities.

The grievor, a single mother of two young children under the age of 6, worked as an apprentice welder. She worked a schedule of seven days on, seven days off, rotating between night and day shifts. The grievor had no family or other support locally who were able to assist with child care. Night shifts were problematic for the grievor, as she had to obtain child care during the night and then either watch her children during the day and obtain minimal sleep, or pay for additional child care to allow her to sleep during the day. The grievor requested that she be able to work day shifts only and the union found another apprentice welder who was willing to work exclusively night shifts. The employer was unwilling to permit the change.

The arbitrator found that the term “family status” included childcare responsibilities, but noted that the arbitral jurisprudence has been divided on the appropriate standard for prima facie discrimination in family status cases. The Federal Court and various arbitrators and Human Rights Tribunals have held that the ground of family status should be treated no differently than any other ground of discrimination, (i.e., has the grievor been adversely affected based upon her family status by an employer rule or policy?) The British Columbia Court of Appeal has taken a different approach, imposing a higher standard for prima facie discrimination that requires an employer-imposed change in a term or condition of employment, that results in serious interference with a substantial parental obligation.

The arbitrator did not adopt the BC Court’s approach, holding that it was more appropriate to treat family status in the same manner as the other prohibited grounds of discrimination. He observed that such an approach was more in line with the underlying purpose of human rights law. He concluded that the employer’s rule requiring the grievor to work night shifts had a serious adverse effect on her ability to financially support her family. The arbitrator noted that the employer presented no evidence of undue hardship and the grievor had made efforts to “self-accommodate” by reconciling her family obligations with her work obligations.

This case sounds a warning that employers need to approach requests for accommodation based on an employee’s child care obligations with caution. As with all accommodation requests, each request must be considered carefully, with regard to its particular facts. Although the higher standard arguably still applies in British Columbia, decision makers are increasingly distancing themselves from this approach.

Communications, Energy and Paperworkers Union, Local 707 v. SMS Equipment Inc. (Cahill-Saunders Grievance), [2013] A.G.A.A. No. 41
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