The content of this article is intended to provide a general guide to the subject matter and does not comprise legal advice.
British Columbia’s human rights law, including as it applies to unionized workers, has an unfair and unfounded double-standard. The need of parents – usually women – to juggle caregiving responsibilities and jobs is afforded less legal protection than other types of human rights accommodation.
In almost every context in Canada, human rights law with respect to accommodation applies a two-part analysis:
1. Has an employee experienced an adverse impact in their workplace based on a protected characteristic held by the employee?
2. Has the employer satisfied its duty to accommodate that employee up to the point of undue hardship?
Where the answer to the first question is yes, discrimination has occurred. Whether the employer has a duty to modify the workplace in any way is a question for part two. An employer will not always have an obligation to accommodate an employee just because discrimination has occurred or is occurring.
The one exception comes with respect to the protected ground of family status. When it comes to family status, and in particular parental or caregiver obligations, decision-makers in British Columbia have adopted an approach that entrenches barriers to the workforce for women and maintains the devaluation of work that has traditionally been, and continues to be, performed primarily by women.
In British Columbia, in order to establish prima facie discrimination an employee must establish:
1. A change in a term or condition of employment imposed by an employer; and,
2. That change results in a serious interference with a substantial parental or other family duty or obligation.
This test was established by Arbitrator Stan Lanyon in Campbell River. The law in British Columbia distinguishes the human right to family status from all other rights by establishing a higher threshold for discrimination and devalues the role of childcare and caregiving in doing so.
Earlier this year the British Columbia Court of Appeal affirmed that the test for family status discrimination in Campbell River remains the law in this province, at least until challenged with the right facts.
British Columbia’s test incorporates the concept of self-accommodation into the question of whether discrimination has occurred. Self-accommodation is the concept that an employee has a duty to attempt to resolve their accommodation issues on their own before the employer has a responsibility to accommodate them. Typically the issue of self-accommodation only arises at the second stage of the analysis: once an employee establishes an adverse impact based on a protected ground (i.e., an entitlement to accommodation), the question of what the employer has to do to accommodate includes a consideration of what is reasonable for the employee to do for themselves.
Self-accommodation is not normally considered at the stage of determining whether there is any entitlement to accommodation. As stated by Justice Hollins of the Alberta Court of Queen’s Bench, “the analysis of self-accommodation is not irrelevant – it just belongs elsewhere”. Justice Hollins’ comments reflect the state of the law in Alberta and most other jurisdictions in Canada where family status is provided the same respect as any other right.
At first this might seem like a distinction without a difference, but the outcome is a process that continues the devaluation of work that has been traditionally “women’s work” and maintains highly-gendered barriers to full engagement in the workforce. Even leaving practical considerations aside, by placing an initial hurdle on employees to establish a “serious interference” with a “substantial” parental or caregiving duty before discrimination is established, unlike any other protected human right, the law in British Columbia devalues that right at the outset. Lowering family status to a second-class right where an Employer has not discriminated unless they have ‘seriously discriminated’ only furthers the historical devaluation of caregiving work, work that was and continues to be predominately performed by women.
On a practical side this approach also maintains barriers that stand in the way of full integration of women into the workforce. When the duty to accommodate process is triggered, employees and employers are required to engage in meaningful, multi-party dialogue to develop a solution. Self-accommodation still applies as part of the process and the most reasonable solution in many cases may ultimately be what currently occurs: the employee finds ways to vary their childcare or caregiving duties, takes steps such as arranging carpooling with friends and family, or takes on the - generally substantial - costs of hiring an additional caregiver or accessing an afterschool program.
However, the problem with the current approach is it requires employees to tailor their childcare and caregiving duties around the needs of the employer regardless of how easy it may be for the employer to adjust their practices to the needs of the employee. The employer only has to make a change if the employee changes everything she possibly can change and still can’t make her situation work.
By ditching the Campbell River approach and treating family status as an equal right to all other rights, the task of developing a solution to challenging economic and personal situations would be more equally shared between the parties and creative solutions that may push the traditional structures of work may be more readily arrived at. At the very least we would move away from the demeaning idea that family status is a second-class right.