Family Status Discrimination in EmploymentMay 1 2023
What is “Family Status Discrimination”?
The Human Rights Code (the “Code”) sets out protections for British Columbians. In relation to employment, Section 13 of the Code states that a person must not refuse to employ or continue to employ or discriminate against a person regarding a term or condition of their employment because of such grounds as Indigenous identity, race, religion, physical or mental disability, sexual orientation or family status, as well as other protected characteristics.
The test for establishing discrimination has been the subject of considerable uncertainty and controversy in the human rights arena. The British Columbia Court of Appeal (the “Court of Appeal”) recently issued a decision broadening the test for family status under Section 13 in the decision British Columbia (Human Rights Tribunal) v Gibraltar Mines Ltd., 2023 BCCA 168 (“Gibraltar Mines”). This decision is significant as it considerably expands the circumstances in which an employer may be found to have discriminated against an employee on the basis of family status.
There is no clear-cut definition of “family status” in the Code, meaning that the scope of family status is to be developed by the courts through case law. It has traditionally included “substantial family caregiving duties or obligations and significant interests in relation to family caregiving.”
History of Family Status Discrimination in BC
It has long been understood that the test for family status discrimination in British Columbia was set out by the Court of Appeal in Health Sciences Assoc. of BC v. Campbell River and North Island Transition Society, 2004 BCCA 260 (“Campbell River”). According to Campbell River, an employee must prove the following:
- a change in a term or condition of employment by the employer; and
- that the change resulted in a serious interference with a substantial parental or other family duty or obligation.
Gibraltar Mines Case Background
The recent Court of Appeal decision relates to a 2018 BC Human Rights Tribunal (the “Tribunal”) complaint filed by Lisa Harvey. At the time, Ms. Harvey was a journeyman welder at Gibraltar near Williams Lake, BC, and she alleged discrimination by her employer upon return to work from maternity leave. Prior to taking her maternity leave, Ms. Harvey and her husband worked the same 12-hour shift at Gibraltar. Ms. Harvey sought a workplace accommodation to alter her and her husband’s shifts to facilitate childcare arrangements. However, the request was rejected, and Gibraltar instead suggested that either Ms. Harvey or her husband switch to an opposing 12-hour shift.
The Tribunal held that there was discrimination and there was no obligation on Ms. Harvey to show a change in terms or conditions in the context of requesting an accommodation based on childcare duties. Gibraltar applied to the BC Supreme Court for judicial review of the Tribunal’s decision. The BC Supreme Court held that it was bound by the Court of Appeal’s previous rulings and the Campbell River test. Since Gibraltar had not changed a term or condition of Ms. Harvey’s employment, there was no case of discrimination. The Tribunal then appealed the BC Supreme Court’s decision to the Court of Appeal.
The New Legal Test for Family Status Discrimination
In Gibraltar Mines, the central issue on appeal was whether a change in an employee’s terms or conditions of employment was required to establish family status discrimination. The Court of Appeal determined that the Campbell River test does not dictate that a change to a term or condition of employment by an employer is the only circumstance in which family status can be establishment. The Court of Appeal also stated that human rights legislation is quasi-constitutional and as such, must be given a broad and liberal interpretation in order to achieve its purposes.
Under the new legal test, for a complaint of family status to succeed under Section 13 of the Code, a complainant must satisfy two elements:
- they suffered an adverse impact arising from a term or condition of employment; and
- the term or condition of employment amounted to a serious interference with a substantial parental or family obligation.
Takeaways for Employers
Given this development, BC employers should be aware of the potential liability arising where a condition or term of employment results in a serious interference with a substantial parental or other family duty or obligation, even absent an employer change to the term or condition of the employment. That means, if circumstances change in your employee’s life then you may be required to vary the terms of their existing employment to reduce the interference the employee faces in carrying out familiar obligations such as caring for an aging parent or dependents.
This decision could force employers to be more flexible when it comes to granting parents and caregivers workplace accommodations. Employers will need to update their policies and practices to ensure that accommodation requests based on family status are seriously considered in light of whether there is an adverse impact and serious interference.
Whether you’re an employee struggling with substantial parental or other family duties with an unsupportive employer or an employer unsure of what your obligations are in relation to accommodating an employee’s family status, we can help. Please call our office at 604.853.0774 to set up a consult with one of our Employment lawyers.