This case involves a mother who faced with a conflict between workplace requirements (she worked in a women’s shelter) and childcare requirements (she cared for a son who had a major psychiatric disorder) when her employer changed a term of her employment.
Her regular hours of work (8:30 to 3:00) allowed her to care for her son in the afternoons. This daily after-school care was characterized by the child’s physician as an “extraordinarily important medical adjunct” to his treatment plan. In 2001, her employer changed her hours of work, requiring her to work from 11:30 to 6:00. This change was made in good faith for a rational purpose: in order to improve the impact of an outreach program involving the provision of counselling services for children. The employee, supported by her colleagues who were willing to swap shifts in order to accommodate her, requested that she be allowed to keep her regular hours in order to care for her son. The employer rejected her request by means of a letter requiring her to work the new hours. The rejection, and the way it was delivered, led the employee to suffer post-traumatic stress disorder. Due to stress, her doctor confirmed that she would never be able to return to work for the respondent. She was terminated. The employee filed a grievance asking for lost salary and punitive damages.
In the ruling, the arbitrator ruled that having child-care responsibilities did not amount to family status, and that imposing new hours of work resulting in a conflict with such responsibilities did not amount to prima facie discrimination. The ruling stated that “ Family status refers to the status of parent and child and not with the individual circumstance of a family’s needs, such as those concerning childcare arrangements. I therefore conclude that all parents that experience difficult childcare arrangements, as a result of their employment, are not a class or category that section 13 of the HRC seeks to protect.
The BC Court of Appeal rejects the arbitrator’s definition of family status as well as his decision not to find a prima facie case of discrimination.
1) Does “family status” include the fiduciary obligation of parents to care for their children?
2) Did the respondent discriminate against the employee by not reasonably accommodating her particular family status
3) Does the arbitrator have an obligation to fashion an appropriate remedy in damages under the Code.
2) Yes (to prima facie discrimination), N/A (to discrimination)
1) “The parties have cited no other cases that assist in providing a working definition of the parameters of the concept of family status as the term is used in the Code. In my opinion, it cannot be an open-ended concept as urged by the appellant for that would have the potential to cause disruption and great mischief in the workplace; nor, in the context of the present case, can it be limited to “the status of being a parent per se” as found by the arbitrator (and as argued by the respondent on this appeal) for that would not address serious negative impacts that some decisions of employers might have on the parental and other family obligations of all, some, or one of the employees affected by such decisions. / If the term “family status is not elusive of definition, the definition lies somewhere between the two extremes urged by the parties. Whether particular conduct does or does not amount to prima facie discrimination on the basis of family status will depend on the circumstances of each case. 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. “ para 38-39
2) The judge found that the arbitrator erred in not finding a prima facie case of discrimination: “In the present case, the arbitrator accepted the evidence of Dr. Lund that Ms. Howard’s son has a major psychiatric disorder and that her attendance to his needs during after-school hours was “an extraordinarily important medical adjunct” to the son’s wellbeing. In my opinion, this was a substantial parental obligation of Ms. Howard to her son. The decision by the respondent to change Ms. Howard’s hours of work was a serious interference with her discharge of that obligation. Accordingly, the arbitrator erred in not finding prima facie case of discrimination on the basis of family status”. The judge remitted the case back to the arbitrator who was charging with determining whether or not the respondent discriminated against the employee by failing to accommodate her family status.
3) “It is not appropriate for us to discuss the issue of damages. That is a matter for the arbitrator to address if he finds against the respondent on the accommodation issue.”