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Tug-of-War Over Accommodating Family Status

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Tug-of-War Over Accommodating Family StatusWhile it would be foolish to ignore religion, gender, and age as potential grounds for discrimination complaints, employers are presently struggling on another front.  So-called “family status” discrimination complaints seem to be the growth area in today’s human rights world.

British Columbia, along with other provincial and federal jurisdictions in Canada, prohibits employers from refusing to employ (or otherwise discriminating against) a person regarding employment because of the person’s “family status”.  What the vague term, “family status”, means in the employment context is gradually becoming clearer.

Generally speaking, the “family status” ground of discrimination has been used to prevent employers from altering a term or condition of employment due to the parental obligations of employees.  The “family status” ground can also cover other family-related situations, but parenting obligations seem to be the most frequent instance.

Examples of parenting obligations might include restrictions on working hours due to limits on daycare availability, an inability to relocate for employment due to family obligations, the need to be absent from work to attend to family medical situations, etc.  It is apparent that the tension arises, often, out of family-related limitations on the employee’s availability for work.

In years past, an employer’s reaction to an employee imposing family-related restrictions on his or her availability might have been to send the employee packing.  That is, of course, because employers need employees to be available for work and feel that regular attendance is one of the inviolable obligations of employment.

Employees, on the other hand, wish to protect their sphere of freedom and to reserve adequate time to attend to family-related obligations.  The tension between the employer’s needs and the employee’s wishes is at the heart of the “family status” tug-of-war.

There have been numerous recent decisions by human rights tribunals in which the “family status” ground has been applied.  While there is some disagreement about the practical application of this ground (B.C.’s Court of Appeal, in a complaint against the Campbell River and North Island Transition Society, set the bar high in requiring evidence of a “serious interference with a substantial parental or other family duty”), it cannot be doubted that “family status” will become one of the most litigated grounds of discrimination in employment.

B.C.’s Human Rights Tribunal recently dealt with a fairly typical set of circumstances.  Cavanaugh, the single mother of a young child, filed a complaint against the Sea to Sky Hotel after her employment as Banquet Manager was terminated.

In particular, she claimed that her employer refused to continue to employ her because of assumptions it made about her ability to work.  The Sea to Sky Hotel asserted that her employment was terminated solely due to her poor performance.

The turning point in Cavanaugh’s employment seemed to have been when her employer learned that her weekend child care arrangements had changed.  It seems the employer thought her responsibilities as a parent required her to find a less challenging job than that of Banquet Manager (which called for long and irregular hours of work).

The Tribunal came to the conclusion that the employer’s concern about Cavanaugh’s child care arrangements, particularly a change affecting her weekend availability, was one of the reasons contributing to the decision to terminate her employment.  The Tribunal also noted there was no evidence that Cavanaugh would be unable to meet the “long, irregular hours” requirement on an ongoing basis or that any attempts were made by the employer to discuss possible accommodations with her.

As a result of her employer’s discrimination, Ms. Cavanaugh was awarded lost wages and damages for injury to dignity, feelings and self-respect totaling over $12,000.  One doesn’t have to be the Amazing Kreskin to predict that there will be many more such awards as the “family status” tug-of-war plays out.

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