Photo Credit - Anne de Haas

Photo Credit – Anne de Haas

Discrimination on the grounds of “family status” continues to be a hot topic for Canadian employers. Are employers required to accommodate an employee’s eldercare obligations? Are these sorts of obligations different than an employee’s childcare obligations?  Where is the line between personal preference to help out one’s parents and a medical or legal obligation that requires accommodation under the Ontario Human Rights Code?  What happens when an employee’s disability accommodation starts to intersect with her family care obligations?

In an era full of dual-income families without the traditional housewife who spent significant time taking care of aging parents and young children, families continue to sort through how to continue working while fulfilling care duties on the homefront.

Over the next few weeks, I will explore the statutory framework of discrimination on the basis of “family status”, the evolving case law, the new legal test, and best practices for handling family status issues in the workplace.

Legislative Framework

All human rights legislation across Canada include “family status” (“civil status” in Quebec) as a ground of prohibited discrimination. The only exception is New Brunswick, but there are apparently ongoing reviews to add the ground at some point.

Under the Ontario Human Rights Code, Ontario employers cannot discriminate against an employee on various protected grounds, including “family status”, as follows:

  1. (1)Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability

The term “family status” is defined in the Code to mean “the status of being in a parent and child relationship”.

Constructive Discrimination

Few employers would discriminate flatly on the grounds that someone is caring for aging parents or taking care of kids if the employee is otherwise a reliable, high performer.  Having said that, there is no doubt that discriminatory assumptions about family care continue to exist in many workplaces (I cringe every time I hear people talk of “her baby brain” when a women returns from mat leave).

The more complicated risk of discrimination, however, is when an otherwise acceptable rule, standard or qualification amounts to a discriminatory result as follows:

  1. (1)A right of a person under Part I [the general Freedom from Discrimination provisions] is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,

(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or

(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.

(2) The Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

All employees who are captured by one of the protected grounds under the Code are entitled to be accommodated, up to the point of undue hardship of the employer, subject to the exceptions of (a) a reasonable and bona fide requirement or (b) the Code declares that a specific act is not discrimination (e.g. setting up a religious school and requiring families attending the school to be of that particular faith).

This is a very complicated and prolific area of human rights law in Canada. What is undue hardship, and at what point can the employer say it has reached that threshold?

Stay tuned for my next post on family status, where I discuss what the accommodation of this ground of discrimination looks like, and what the courts and tribunals are saying are the lengths employers must go to address discrimination on the basis of family status.