Family Status Discrimination

The challenges in balancing employment and childcare obligations

It is settled law that family status discrimination cannot be limited to the status of being a parent per se, as that would fail to address the consequences of workplace decisions that negatively affect employees’ family obligations.

Family Status Discrimination

It is settled law that family status discrimination cannot be limited to the status of being a parent per se, as that would fail to address the consequences of workplace decisions that negatively affect employees’ family obligations. Similarly, the concept cannot be so open-ended that any conflict between personal and professional responsibilities arises in discrimination, as that would result in serious workplace disruptions. However, contained within these broad boundaries, two lines of authority have developed that attempt to balance these competing interests in how they define what constitutes family status discrimination and what responsibilities are placed on employees and employers.

British Columbia

In British Columbia, the law was largely settled by the 2004 Court of Appeal decision in Health Sciences Association of BC v. Campbell River and North Island Transition Society (“Campbell River”). The Court in Campbell River took a restrictive approach, holding that family status discrimination occurs where “… 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.”

The Campbell River test is noticeably more restrictive than the test for prima facie discrimination for other protected grounds, where it is only necessary to show that the individual was a member of a protected group, who experienced adverse treatment, and that there was a nexus between the ground and adverse treatment.

While Campbell River has been applied within British Columbia, federally, the Campbell River approach has been resisted as being too stringent and has been criticized for creating a hierarchy of human rights.

Federal

On May 2, 2014, the Federal Court of Appeal released its decision of Johnstone v. Canada (Border Services) (“Johnstone”). Mrs. Johnstone and her husband were both employed by the Canadian Border Services Association (the “CBSA”). The CBSA used a rotating shift schedule for its full-time employees. Mrs. Johnstone found that the shift pattern made it difficult to secure reliable childcare and she requested a fixed full-time schedule. The CBSA told her that they would provide her with a fixed schedule, but that she would have to reduce her hours from full-time to part-time.

On review, the Court in Johnstone developed a four-part threshold test for family status discrimination:

(i) that a child is under his or her care and supervision; (ii) that the childcare obligation at issue engages the individual’s legal responsibility for that child, as opposed to a personal choice; (iii) that he or she has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible, and (iv) that the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation.

The Court found that the circumstances of Mrs. Johnstone satisfied this test.

Summary

The Court in Johnstone expressed its opinion that Campbell River is too strict and emphasized that the test for family status discrimination should be substantially similar to the test for prima facie discrimination for other protected grounds. Despite this criticism, the Federal Court of Appeal formulated a stricter test for family status discrimination than exists for other protected grounds and, in doing so, appears to have embraced some of the principles from Campbell River. Time will tell how these two lines of authority develop – whether together to one unified approach or apart as two different approaches.