In modern workplaces, employers are increasingly asked to respond to requests for flexible work arrangements.
This has meant that decision-makers – including courts and tribunals as well as arbitrators, mediators, and workplace investigators – are presented with situations that involve balancing an employers’ reasonable expectations that employees will meet their job expectations with workers’ needs to balance occupational and family responsibilities.
Fortunately, arbitration hearings and workplace investigations are not an ad hoc process. Decision-makers in these processes consider relevant legal authorities, and knowing some general information about these authorities is a valuable asset for all parties.
Legal Authorities Considered by Arbitrators, Mediators and Workplace Investigators
A. Human Rights Legislation
“Family Status” is among the prohibited grounds for discrimination found in British Columbia’s Human Rights Code, RSBC 1996, c 210, and the federal equivalent Canadian Human Rights Act, RSC 1985, c H-6. The current listed protected grounds are:
- national or ethnic origin [federal] / ancestry, place of origin [provincial];
- sex (including pregnancy or child-birth);
- sexual orientation;
- marital status;
- family status;
- genetic characteristics [federal] ;
- disability [federal] / physical or mental disability [provincial]
- conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered [federal]; and
- gender identity or expression.
B. The Legal Test Regarding Whether There Has Been Discrimination
The leading case for determining whether there has been workplace discrimination is Health Sciences Assoc. of B.C. v. Campbell River and North Island Transition Society, 2004 BCCA 260 (“Campbell River”) , which sets out the following three-step test wherein decision-makers examine whether a complainant has established that:
- they are a member of a group protected under one or more of the enumerated grounds;
- they experienced some adverse effect in their employment; and
- the protected ground(s) was a factor in the adverse treatment.
It is noteworthy, regarding the third criterion, that the protected ground does not need to be the only factor causing adverse treatment, only a factor (Yap v. The Brick Warehouse Corp., 2004 BCHRT 22 (CanLII)).
C. The Legal Test Regarding Whether the Discrimination is Defensible
If it is established that the complainant has been discriminated against, the Supreme Court of Canada (in British Columbia (Public Service Employee Relations Commission) v. BCGSEU,  3 SCR 3, 1999 CanLII 652 (SCC)) has set out a test to determine whether that standard is defensible by virtue of being an “actual occupational requirement” (commonly referred to as a “bona fide occupational requirement of qualification” or BFOR/Q). The employer must prove that:
- the purpose of the standard is rationally related to the performance of the job;
- the standard was adopted because the employer truly believed it was necessary to fulfill a legitimate work-related purpose; and
- the standard is reasonably necessary to fulfill that work-related purpose.
This third component of the test involves the employer’s duty to accommodate, where an employer must show whether or not they have discharged that duty (i.e. the employer must demonstrate the steps they took to accommodate the employee). To be seen as reasonably accommodating, the employer’s efforts do not have to result in full accommodation for the employee, but must rise to a level short of a point of ‘undue hardship’. This is a high standard for employers to meet.
Contrasting Examples from Arbitration Hearings and Tribunal Decisions
1. In Cavanaugh v. Sea to Sky Hotel and Mohajer (No. 2), 2010 BCHRT 209, an employee who worked long and irregular hours as a banquet manager alleged that her superior had discriminated against her on the basis of family status. At the time she was hired, the employee had discussed her family obligations and confirmed the need for her to be flexible with her hours. As time went on, the employer reduced her work to part-time based on the belief that the employee’s performance was poor because she was unable to adequately balance her work and family commitments. Ultimately her employment was terminated at least in part for those reasons.
In concluding that the employee had indeed been discriminated against, the Tribunal applied the test from Campbell River. The employee satisfied these criteria as she was the single mother of a young child – which relates to the ground of family status – and she experienced an adverse effect in her employment (termination of employment). The Tribunal was able to confirm, based on employer testimony, that the reason for the termination was because of the employer’s family status. As such, the Tribunal found the employer liable for lost wages and expenses and, additionally, they were ordered to pay compensation for injury to dignity, feelings, and self-respect.
2. A somewhat contrasting result occurred in Envirocon Environmental Services, ULC v. Suen, 2019 BCCA 46 (CanLII) wherein the employer successfully appealed a Human Rights Tribunal decision which had found discrimination on the basis of family status. In that case, the complainant was terminated after beginning to refuse to accept out-of-province assignments following the birth of his child. Ultimately, in deciding whether the employee had suffered an adverse effect the court of appeal stated that:
“(the employee’s) desire to remain close to home to be with his child and to assist his wife in caring for the child outside of his normal weekday working hours and on weekends is understandable and commendable, he is no different than the vast majority of parents. There are many parents who are required to be away from home for extended periods for work-related reasons who continue to meet their obligations to their children. Nothing in (the employee’s) complaint or affidavit suggests his child would not be well cared for in his absence.”
This matter illustrates that decision-makers may not consider there to be an adverse effect where the situation involves a preference as opposed to conflicting duties/responsibilities.
Family status is a ground protected against discrimination by human rights legislation. If alleging workplace discrimination, complainants must prove their standing as having a family status, which caused them to suffer an adverse effect. Employers may then defend their decision based on a BFOR/Q.
While the aforementioned legal test may seem straightforward, experience and knowledge as to how the test has been applied are required in order to examine a given fact scenario/situation. In that regard, please contact Neil Hain for a consultation regarding contractual rights & entitlements issues at your workplace.