All in the Family (Status)
HOW FAR DO EMPLOYERS HAVE TO GO TO ACCOMMODATE FAMILY STATUS?
Over the past few years, there has been a lot of time and
ink devoted to understanding the scope of “family status”
protection under federal and provincial human rights legislation.
As a result, Canadian employers are often left
scratching their heads when faced with a “family/childcare” accommodation
request in the workplace.
THE STATE OF THE LAW
You may recall that there had been (and still is) an attempt to clarify
what would constitute discrimination on the basis of family
status when it came to childcare obligations. One approach, set
out by the British Columbia Court of Appeal, determined that in
order to trigger the obligation of an employer to accommodate, an
employee had to demonstrate a “serious interference with a substantial
parental or other family duty.”
The 2015 Federal Court of Appeal decisions in Canada (Attorney
General) v. Johnstone and Canadian National Railway v. Seeley held
that a “serious interference” standard was too high a threshold and
would undermine the protection against discrimination provided
by legislation as it related to family status issues. Instead, the
Federal Court of Appeal reframed the debate and asked whether
or not the employment rule interfered with an employee’s ability to
fulfill their substantial parental obligations in any way.
The take-away for employers from the debate is twofold: first,
it confirms that at law, “family status” includes not only the status
of being a parent, but also the parental obligations that flow from
By Lorenzo Lisi
Monkey Business Images/Shutterstock.com
HRPATODAY.CA ❚ OCTOBER 2016 ❚ 33