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5 Employer “Family Status” Discrimination & Accommodation FAQs

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September 21, 2017

Author(s):

• Karen Holloway
• Amanda Nash

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Updated February 13, 2024

An increasing number of employees are struggling to meet the challenge of the competing demands of their employers and those of their families. This challenge has led to an increase in family status accommodation requests and discrimination claims. For years, courts and arbitrators have been forced to balance the needs of employees against freedom of contract and the needs of employers. Yet the legal test for family status discrimination in employment remains a moving target. To help you cope with employees’ family status accommodation requests, here are the answers to five of employers’ most frequently asked questions about workplace discrimination and accommodation on the basis of family status.

The Work-Family Challenge

Two key factors contributed to the increase in the number of employees seeking accommodation on the basis of family status:

The COVID-19 Pandemic. Perhaps no other single event in recent history changed the workplace more than the COVID-19 Pandemic.

• According to Statistics Canada, at the end of May 2020 (the height of pandemic lockdowns), 6% of Canadians were working remotely– almost two times the pre-pandemic number. By the beginning of 2021, 32% of Canadian employees aged 15 to 69 still worked most hours from home versus 4% in 2016. With the rise and fall of the COVID waves, workplaces, schools and daycares were periodically closed, often meaning multiple parents working from home, many with children of all ages at home, some engaging in on-line schooling. All at the same time.
• While technically over, the COVID Pandemic left lasting impacts. COVID led employers to quickly implement ways for employees to work remotely. Many employees (and many employers) liked the taste of remote working: in November 2023, 20% of Canadians working most of their hours from home (versus 7% in May 2016). And employees are fighting for this right; for example, the right to work remotely was a significant issue at the PSAC bargaining table in 2022. The Pandemic also left a lasting sensitivity to illness symptoms and for people in general to stay home when suffering illness symptoms – whether employees themselves or their family members, who might require care from asymptomatic employees.

The Sandwich Generation. More employees (mostly women) are finding themselves in the “sandwich generation” squeezed between childcare on one side and eldercare on the other:

• In 2022, 52% of women and 42% of men provided some form of care to children and care-dependent adults – often unpaid. A total of 6% of those providing unpaid care are caring for both children and care-dependent adults at the same time. And given the growth in the population aged 65 plus, these care-giver demands will likely only increase.

• Unpaid care can have a negative impact on employes’ physical and mental health: 56% of unpaid caregivers feel tired because of their responsibilities and 44% felt worried or anxious in the prior 12 months.

5 Employer “Family Status” Discrimination & Accommodation FAQs

The impact of – and the response to – the growing work-family challenge is borne by both employees and their employers. Here are the answers to five of employers’ most frequently asked questions about workplace discrimination and accommodation on the basis of family status.

1. What is “family status”?

“Family status” is a protected ground under human rights laws of all Canadian provinces and territories (N.B. added “family status”, as well as “gender identity or expression”, as a protected ground under the N.B. Human Rights Act in May 2017; Québec’s “civil status” encompasses any form of family ties or affinity with another person) and federally. However, some don’t define “family status” at all. When they do, the definition varies (between provinces for provincially regulated employers, and federally for federally regulated employers). For example, human rights legislation in N.S., P.E.I. and Ontario  define “family status” as, “the status of being in a parent and child relationship”. That of N.L. defines it expansively as, “the status of being in a parent and child relationship”; “child” includes a stepchild and an adopted child and “parent” includes a step-parent and an adoptive parent. In N.B., the Human Rights Commission has stated its interpretation of “family” includes being related to another person through blood, marriage, adoption or legal guardianship, but it is not strictly limited to these relationships. Look to the specific human rights laws in the provinces in which you operate (or federally) for the specific requirements when developing policies and making decisions regarding accommodation.

2. What does the “family status” ground protect?

This is a developing area, so the scope of the protection of “family status” is evolving. And the Supreme Court of Canada hasn’t yet heard a family status discrimination case of any kind. However, based on decisions in provincial and the federal jurisdictions, so far it seems clear it includes the protection of both childcare and eldercare obligations:

Childcare Obligations. Courts and arbitrators have confirmed that the prohibited ground of discrimination based on “family status” includes discrimination based on a parent’s childcare obligations, so an employer is prohibited from discriminating against an employee based on their childcare obligations.

Parent or “Eldercare” Obligations.  Similarly, those decisions dealing with “family status” discrimination in the context of eldercare confirm that care of a parent is also protected under “family status”.

How a Family is Formed. Human rights legislation doesn’t necessarily make what constitutes a “parent” clear, and thus whether “family status” under human rights legislation includes how someone became a parent. However, at least one decision suggests it does. In Adekayode v. Halifax (Regional Municipality), a collective agreement gave adoptive, but not biological, parents a top-up when they went on parental leave. The employee, a biological parent, was denied top-up benefits and lodged a human rights complaint alleging discrimination on the basis of family status. The N.S. Human Rights Commission Board of Inquiry agreed, deciding “family status” under N.S. human rights legislation includes the nature of the parent/child relationship.

3. What’s the test for discrimination on the basis of family status?

The answer is, unfortunately, complicated and uncertain. In 2012, the Supreme Court of Canada established a two-stage test for discrimination claims, including in employment (Moore v. British Columbia (Education):

• The complainant employee must prove a “prima facie” case (a case on its face) of discrimination: they have a characteristic protected from discrimination by the applicable human rights law; they experienced an adverse impact or treatment; and the protected characteristic was a (not necessarily the only) factor in that adverse impact or treatment.
• If the employee does so, the employer can defend itself by either: disproving the prima faciecase; or justifying the discrimination based on an exemption in the human rights law, or on a bona fide occupational requirement (“BFOR”, sometimes also called a “bona fide occupational qualification” or a “genuine occupational requirement”) that it can’t accommodate without undue hardship.

The legal test for whether the employer has discriminated and has met its duty to accommodate is consistent across Canada in many human rights areas – but not family status discrimination, where Canadian courts and adjudicators have taken different approaches for some time. The resulting variation and uncertainty is an interesting theoretical legal debate, but leaves employers in a practical quandary: what’s the test? Unfortunately, this uncertainty is likely to persist until the Supreme Court of Canada decides a family status discrimination case. However, in the context of the COVID-19 Pandemic the requirement to work from home to comply with government directives or fulfill occupational health and safety law obligations, coupled with school and daycare closures, likely triggered the employer’s duty to accommodate an employee’s childcare obligations to the point of undue hardship while working from home under any of these legal tests.

British Columbia. In 2004, the B.C. Court of Appeal enunciated a test requiring the employee prove the employer imposed a change in a term or condition of employment that caused “serious interference” with a “substantial” parental or other family duty or obligation (Health Sciences Assoc. of B.C. v. Campbell River and North Island Transition Society). Preceding the Supreme Court’s general discrimination test decision, this B.C. test has been criticized for focusing on employer-initiated changes instead of those that occur in employees’ lives (like having a child or aging parents) and raising the threshold to establish discrimination relative to other discrimination grounds. In 2019 the B.C. Court of Appeal reconfirmed this test (Envirocon Environmental Services, ULC v. Suen); the Supreme Court of Canada’s refused to hear an appeal. However, in 2023 the B.C. Court of Appeal revisited and clarified both its decision in Campbell River and in Envirocon. In British Columbia (Human Rights Tribunal) v. Gibraltar Mines, the Court confirmed the test for family status discrimination does not require the employee prove the employer imposed a change in a term or condition of employment; and further, the “materiality” tests (the requirement for “serious interference” with a “substantial” family obligation) are consistent with similar thresholds in other provinces. As a result, Gibralter Mines both widened the scope of family status protection in B.C. and narrowed the gap between the test in B.C. and that in other jurisdictions.

Federal. In 2014 and 2015, the Federal Court of Appeal established a four-part test for family status discrimination in the context of childcare (Canada (Attorney General) v. Johnstone and Canadian National Railway Company v. Seeley) requiring the employee prove that:

• A child is actually under their care or supervision such that their failure to meet the child’s needs will engage the employee’s legal responsibility.
• The child isn’t of an age where they can reasonably be expected to care for themself during the parent’s work hours, and the childcare need flows from a legal obligation and not personal family choices. Thus, not all family commitments necessarily trigger the employer’s duty to accommodate; for example, it’s not triggered by requests like a transfer to be closer to family, attending a child’s events or voluntary activities, or to spend more time with children when there’s an alternate childcare arrangement.
• They have made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and none are reasonably accessible: neither they nor the other parent (or guardian) can meet their legal childcare obligations while continuing to work, and an alternative arrangement isn’t reasonably accessible to them to allow them to meet their work needs. (This requirement has since been referred to as “self-accommodation”.)
• The workplace rule interferes with the fulfillment of the childcare obligation in more than a trivial or insubstantial way.

This federal test is only for complaints under the Canadian Human Rights Act, which applies only to federally-regulated employers, although some provincial courts and adjudicators still follow it for provincial human rights complaints. However, this test, too, has been harshly criticized – and in some jurisdictions, rejected – on the basis the third element is contrary to the test the Supreme Court of Canada established in Moore, and similarly raises the threshold to establish discrimination by incorporating a “self-accommodation” requirement in the third element.

Ontario. The Ontario Court of Appeal initially adopted the federal test (Partridge v. Botony Dental Corporation). However, in 2017 the Ontario Human Rights Tribunal flat-out rejected the notion the test to establish family status discrimination differs from that for any other protected ground for several reasons (Misetich v. Value Village Stores Inc. and Ananda v. Humber College Institute of Technology & Advanced Learning), including: its “legal obligation” element is hard to apply in the context of eldercare; it sets the bar higher than that for other discrimination grounds (for example, the requirements to prove the employee’s “legal obligation” is engaged and “self-accommod[ation]”); and a different test for family status discrimination creates legal inconsistency and uncertainty. Instead, the test to establish discrimination is the same for every protected ground – including family status – requiring the employee to prove:

• The negative impact on a family need results in “real disadvantage” to the parent/child relationship and attendant responsibilities, and/or to the employee’s work, based on a contextual assessment of the impact that might include other supports available to the complainant (but not whether they can “self-accommodate”).
• If the employee does so, the employer can defend itself by proving it can’t accommodate the employee to the point of undue hardship, incorporating consideration of the employee’s co-operation, including providing the employer with information about their family needs and collaboration on solutions.

Alberta. In 2015, the Alberta Court of Queens’ Bench decided the federal test’s requirement for “self-accommodation” is contrary to the Moore decision, finding the question whether the employee made reasonable efforts to meet their caregiver legal obligations through reasonable alternative solutions only arises when (and if) considering whether the employer met its duty to accommodate (SMS Equipment Inc. v. Communications, Energy and Paperworkers Union, Local 707). And in 2021, the Alberta Court of Appeal emphatically endorsed this approach. Making it clear “in Alberta, the debate [over the legal test] must end”, the Court soundly rejected the federal requirement that the employee meet a self-accommodation threshold to prove prima facie discrimination and confirmed that the federal test “puts a further burden on a family status claimant to prove an element of self-accommodation which is not present in other discrimination matters” and “is not in line with authority from the Supreme Court of Canada [in Moore]” (United Nurses of Alberta v. Alberta Health Services).

4. What’s the penalty for discriminating on the basis of “family status”? 

The role of human rights tribunals is to remedy a case of discrimination, and they have broad authority to fashion a solution that’s appropriate to make the complainant employee “whole”. For example, human rights tribunals can do one or more of the following:

Monetary. Make monetary awards to employees to compensate them for the distress and humiliation of being discriminated against and to compensate them for any loss of income that resulted from the discrimination.

Cease & Rectify. Require employers to stop the discriminatory conduct and rectify the discrimination against the employee generally, or in a particular way, like granting the employee a particular accommodation.

Act. Require employers to implement training, policies or procedures to address the discriminatory conduct.

The remedy the N.S. Human Rights Tribunal Board of Inquiry fashioned in a 2015 decision concluding family status includes how a family is formed (Adekayode v. Halifax (Regional Municipality)) illustrates the breadth of a human rights tribunal’s powers to make an employee whole. The Tribunal concluded the employer discriminated against the employee on the basis of family status when it gave top-up benefits for parental leave to adoptive parents but denied them to biological parents, depriving the employee of money and time with his child – and awarded him a paid parental leave with top-up even though the child was no longer an infant.

5. How do employers accommodate “family status”?

“Family status” is a personal characteristic that human rights laws protect from discrimination, so the employer has a duty to accommodate it: to take steps to offset the discriminatory impact of a workplace rule, policy, requirement or practice by adjusting, revising or eliminating it. The guidelines applicable to all accommodation requests also apply to those based on family status:

Undue Hardship. How far does the duty extend? As with any accommodation request on any basis, there’s no “standard” answer: employers must consider each individually and, where warranted, accommodate to the point of “undue hardship”. This means employers are required to suffer some hardship and it’s a high bar. There are many factors relevant to quantifying the hardship level of an accommodation, key among them:

• Financial cost relative to the employer’s size.
• Disruption of a collective agreement.
• Problems of morale of other employees.
• The interchangeability of the workforce.
• The adaptability of facilities.
• The magnitude of any safety risks and who bears them.

Two-Way Street. Accommodation requests come up as a result of employer-initiated workplace changes, or changes to the personal circumstances of an employee or their family. An employer considering changing its operations should consider how those changes might impact its workforce and, where possible, give employees advance notice so they have the opportunity to make necessary arrangements or adjustments. On the flip side, as in all accommodation requests, the employee has a duty to cooperate in the accommodation process. In the context of family status, this includes sharing information with the employer about the relevant needs to allow the employer to identify and assess potential accommodation options and working cooperatively to find a reasonable (not a perfect) accommodation solution.

One Size Does Not Fit All. Even if an employer has standardized procedures for evaluating requests and implementing accommodation, it ought not have standardized solutions: employers must consider the individual circumstances of the employee requesting accommodation and work with that employee to determine an accommodation that’s appropriate in the particular case. Creativity and flexibility are key – particularly in the context of COVID-19. Practically, in the case of accommodation on the basis of family status, a flexible work arrangement often adequately addresses the request. For example:

• Changing an employee’s existing schedule. For example, instead of working 7.5 hours from 9 a.m. to 4:30 p.m., allow the employee to work the same number of hours but in two or three blocks (for example, 7:30 – 10, 1:30 – 3:30 and 7:30 – 10:30) or whenever they can, if that’s feasible.
• Maintaining an employee’s existing schedule.
• Allowing the employee to work specific shifts (for example, only days, only nights, only mornings, and so on).
• Limiting the number of hours an employee works in a day or week.
• Allowing the employee to work remotely, such as working from home(while complying with legal obligations and taking appropriate cyber security measures).

Depending on the circumstances, however, other accommodations could be reasonable. For example, it could be reasonable to grant an (unpaid) leave of absence, to which the employee might be entitled in any event under employment standards or other laws, with job protection.  In the face of the COVID-19 Pandemic, many Canadian governments have implemented changes to employment standards laws to grant employees additional rights, such as a leave of absence, to deal with specific impacts of COVID-19.

Living Tree. The duty to accommodate isn’t limitless, but it is an ongoing process. The accommodation obligation begins when an employer is, or ought to be, aware of the need for accommodation and might take many forms as an employee’s family status and attendant obligations evolve over time. The duty to accommodate only ends when the employment relationship ends, or the employer can establish its accommodation efforts have reached the point of undue hardship.

Write it Down. Keeping thorough and accurate records of the entire accommodation process, including the employee’s and the employer’s steps, is important as an employee’s accommodation needs evolve and, if necessary, can provide evidence in response to a human rights complaint for failure to accommodate.

Please contact your McInnes Cooper lawyer or any member of our Labour & Employment Team @ McInnes Cooper to discuss how to accommodate employees on the basis of family status and check out our MC Training workshop, Duty to Accommodate Dilemmas, to train your managers and supervisors on dealing with family status accommodation requests.

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