On October 18, 2019, we wrote about the tests currently used to establish family status discrimination in Canada, and recommended policies and programs employers can put in place for employees that need accommodations due to parental or other family accommodations (2019 Article). As we stated, the British Columbia Court of Appeal in Envirocon Environmental Services, ULC v. Suen, 2019 BCCA 46 (Suen), refused to reconsider the high burden test for establishing family status discrimination set out in Health Sciences Assoc. of B.C. v. Campbell River and North Island Transition Society, 2004 BCCA 260 (Campbell River), and applied that test. On August 8, 2019, the Supreme Court of Canada dismissed an application for leave to appeal from the judgment of the British Columbia Court of Appeal in Suen, confirming that the Campbell River test remains good law in British Columbia. The Campbell River test provides that a prima facie case of discrimination on the basis of family status is made when:
- There is a change in a term or condition of employment imposed by an employer; and
- The change results in a serious interference with a substantial parental or other family duty or obligation of the employee. [Emphasis added]
As we concluded in the 2019 Article, in British Columbia it is not enough for the employee to have a desire to perform the parental or other family duty, there must be a need to perform the duty and no one else available to perform it.
On October 27, 2020, the British Columbia Human Rights Tribunal (BCHRT) released its decision regarding the last remaining issue remitted to it by the Court of Appeal in Suen v. Envirocon Environmental Services and another (No. 3), 2020 BCHRT 188 (BCHRT Decision), namely whether Suen's family status was a factor in Envirocon's decision to terminate his employment. The BCHRT dismissed Suen's complaint, finding that he had not established that his family status factored into the termination of his employment. It emphasized, "Ultimately, not wanting to be away from one's family is not, on its own, a sufficient basis for turning down a work assignment in a job where travel is sometimes required." It remains to be seen whether Suen will seek judicial review of the BCHRT's decision.
Importantly, in the BCHRT Decision, the Tribunal offered practical advice to employers faced with employees expressing reluctance in circumstances similar to Suen's, emphasizing that had this advice been followed in Suen, the long, protracted legal journey the parties engaged in could have been avoided:
While nothing turns on it...it seems to me that a practical approach for an employer faced with an employee expressing reluctance in circumstances such as here would be to simply engage in a direct conversation to identify the employee's specific concerns and determine whether a workable solution that satisfies both sides becomes apparent. This would likely be far less costly in terms of time, money, and employee attrition. In this case, for example, Mr. Suen testified that a simple weekend home every couple of weeks would have sufficed. Ironically, accepting Mr. Hope's evidence that the Manitoba Assignment would have been subject to both rotations home and certain budgetary and travel discretion, this would have readily been available. In short, if I accept in full the evidence of both Mr. Suen and Mr. Hope, their evidence converges to reveal that a simple, open conversation would have saved a significant amount of time, energy and resources for both sides. (para. 67)
These comments from the BCHRT are in the same vein as the practical recommendations we articulated for employers in all Canadian jurisdictions in our 2019 Article, which included, among other things, open dialogue, erring on the side of flexibility, and reasonable and sincere consideration of the employee's needs. We made these recommendations primarily to prevent employers from developing a reputation for being unwilling to accommodate their employee's family obligations as such a reputation could make it hard for employers to attract and retain the most sought-after employees. As we noted, attraction and retention problems caused by such a reputation would be most significant among millennial employees, the demographic that currently makes up most of Canada's workforce, as they do not hesitate to leave jobs that do not fit with their family commitments. The BCHRT Decision recognizes the cost in employee attrition, however equally compelling is the Tribunal's concern for the employer's costs in time, money and resources.
The recommendations of the Tribunal in the BCHRT Decision provide support for the practical recommendations we set out in the 2019 Article for all Canadian employers facing claims of discrimination based on family status. We continue to recommend this practical approach as good practice and repeat it below:
- Develop company-wide accommodation policies that take a reasonable approach to legitimate childcare and eldercare obligations, erring on the side of flexibility rather than rigidity in establishing schedules and other arrangements;
- When asked to accommodate an employee's childcare or eldercare obligations, have an open dialogue with the employee as soon as possible to ensure the employee's accommodation needs are accurately understood;
- Analyze each employee request for accommodation of childcare or eldercare obligations in a reasonable manner, taking into sincere consideration whether the request will actually cause difficulty for the employer;
- Upon receiving the employee's consent, open a dialogue with relevant employees to determine if they are prepared to assist in facilitating the requested accommodation;
- If appropriate, arrange for a temporary accommodation to allow the employee to put satisfactory childcare or eldercare in place; and
- Offer the employee an employee assistance program that can assist in identifying satisfactory childcare or eldercare support.
Finally, given the importance of employer engagement in open conversation with employees claiming family status discrimination, we encourage employers to keep careful records of the details of such conversations (e.g., dates, content, etc.), and to send emails to employees confirming these details. Diligently maintained records of these conversations may be useful to the employer should a dispute arise regarding what was said.
Originally Published by Littler Mendelson, November 2020
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.