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Queen's University
 

Three approaches to Accommodating employees on the basis of family status

Source: First Reference Talks “When babies need tending and parents need mending: accommodating employees on the basis of family status”

According to studies reported by First Reference Talks, there are currently three conflicting approaches to accommodating employees on the basis of family status:

1)     The narrow approach (the serious interference test)

In the Health Sciences case, the Federal Court of Appeal defines family status as a “substantial obligation” and prima facie discrimination on that ground as “a serious inference” caused by to a change in employment term /conditions. 

"In the usual case where there is no bad faith on the part of the employer and no governing provision in the applicable collective agreement or employment contract, it seems to me that a prima facie case of discrimination is made out when a change in a term or condition of employment imposed by an employer results in a serious interference with a substantial parental or other family duty or obligation of the employee , I think that in the vast majority of situations in which there is a conflict between a work requirement and a family obligation it would be difficult to make out a prima facie case." (Health Sciences para38-39)

2)     The broad approach  

In the Johnstone case, the Federal Court retained the definition of family status proposed in Health Sciences, but rejected the “serious interference test”  because it made family status discrimination more difficult to establish than discrimination on any other ground.   Furthermore, it determined that prima facie discrimination may arise not only when a change occurs in the workplace which comes into conflict with family responsibilities, but also when a change occurs in the family (birth of a child, illness of a family member) which comes into conflict with work responsibilities (para 29).

"In my view, the serious interference test as proposed by the Applicant is not an appropriate test for discrimination on the ground of family status. It creates a higher threshold to establish a prima facie case on the ground of family status as compared to other grounds. Rather, the question to be asked is whether the employment rule interferes with an employee’s ability to fulfill her substantial parental obligations in any realistic way." (128)  

 

3)     The middle approach

In the Power Stream Case, the arbitrator found fault with both approaches while retaining aspects of each.  He held that arbitrators should instead consider five factors when determining prima facie discrimination.

  • What are the relevant characteristics establishing the grievor’s family status?
  • What are the adverse effects complained of and is it reasonable to expect that the Code offers protection against the particular adverse effect of the Employer’s action on each grievor?
  • What prompted the adverse effect on the grievor – a change in the Employer’s rule or a change in the characteristics of the griever’s family status?
  • What efforts have been made to self-accommodate their conflict? Have they rejected options at self-accommodation that they should reasonably be expected to have made?
  • In light of the answers to all these questions taken together, is it reasonable to make finding a discrimination necessitating an inquiry into whether the Employer is able to accommodate the adverse effects of the discrimination (203)

What approach should employers take?

Given the conflict of approaches, coupled with “the aging population and burdened health care system”  (2) Doug MacLeod of First Reference suggests that ...

1)     It depends on where the request for accommodation is made (in BC, employers tend to use the narrow approach whereas federally regulated employers use the broad approach)

2)     Employers should deal with each request on an individual basis, carefully and collaboratively exploring possible solutions

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