"What About Your In-Laws Or Your Neighbour?" Family Status Discrimination – Yet Another Development
Family status accommodation in the workplace continues to undergo critical judicial scrutiny. A recent Alberta case that could have implications for employers has taken yet another direction in considering what obligations should be placed on employers in connection with requests for family status accommodation.
Under the stricter BC approach, which requires that the employee demonstrate a serious interference with a substantial family obligation, it is a challenge for employees to claim a right to be accommodated. While there is a growing number of court cases outside BC that have adopted a lower test for triggering the duty to accommodate, some decisions have required that employees demonstrate that they considered reasonable efforts to self-accommodate their childcare obligations before they can trigger an obligation on the employer to reasonably accommodate their obligations. Under this approach, it was appropriate for employers to ask employees who are seeking accommodation about other options for childcare before exploring whether changes at work should be considered.
The Alberta Court of Queen's Bench has now waded in with a decision that could have consequences on the employer's duty to accommodate: SMS Equipment Inc v Communications, Energy and Paperworkers Union, Local 707, 2015 ABQB 162.
This decision involved a mother of two who worked on rotating night and day shifts. She asked to work on days exclusively because arranging for childcare was too expensive and she did not get sufficient sleep if she looked after the children herself. The employee had not asked the children's fathers for assistance and did not apply for child support or childcare subsidies. Her request was rejected by her employer. The union challenged this decision and an arbitrator upheld the union grievance.
The employer appealed arguing that the arbitrator had failed to properly consider the employee's lack of self-accommodation efforts. The Alberta Court heavily criticized the requirement that the employee demonstrate that she had considered self-accommodation steps prior to requesting accommodation, finding that it was contrary to the purposes of human rights law as it subjected employees seeking family status accommodation to personal examinations of their relationships and financial circumstances. The Court stated that such "one-sided and intrusive inquiries" could deter employees from pursuing discrimination claims. The employer's appeal was dismissed.
The reasons indicate that it was not appropriate for the employer to subject the employee to an examination of whether she had explored self-accommodation through alternative childcare options before considering her requested accommodation. This ruling, if followed, will require that employers take care in how they approach family status accommodation requests. Under the approach the Court adopted, employees will not have to demonstrate that there were no other reasonable options available to satisfy those obligations before requesting accommodation.
A discussion with an employee about other options he or she may have may still be reasonable in the context of a "multi-party" search for accommodation. At that point, however, the onus will be on the employer to provide a reasonable accommodation, absent justification of its rule or undue hardship. The employee's ability to self-accommodate could be a factor in what reasonable steps the employer must take.
The approach in SMS Equipment is somewhat consistent with the stance that courts take in assessing religious accommodation cases – as long as the complainant demonstrates a nexus between the asserted practice or belief and their spiritual faith, in most cases employers are not entitled to inquire about the strength of the religious convictions and must accept them as legitimate.
While the Court found it inappropriate for employers to engage in the one-sided intrusive inquiry into what the employee could do to self-accommodate before it considered whether it could accommodate the employee, the decision implicitly indicates this "intrusive" inquiry may still be necessary at the accommodation stage. However, we expect that there may be challenges to the right or the scope of these inquiries in the future using the religious accommodation cases in support.
So far, BC courts have adhered to the stricter approach toward family status accommodation. However, BC is an outlier within Canada and we expect that there could be a Supreme Court of Canada decision on this issue. In our view, it is not likely that the Supreme Court of Canada will follow the stricter approach.
In the wake of SMS Equipment, employers should take more care in responding to requests to accommodate child or elder care (or other family-related) duties in the workplace.
Note: This a reprint of an article by Bull, Housser & Tupper Labour & Employment Group of Norton Rose Fulbright Canada LLP.