Law Reform to Address Family Responsibilities Discrimination

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Law Reform to Address Family Responsibilities
Discrimination

• Krista James
• Staff Lawyer
• BC Law Institute

• Kacey A. Krenn
• Associate
• Harris Company LLP

Human Rights ConferenceNovember 5, 2009
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Law Reform Family Responsibilities
Discrimination

• Objectives
• Review recent decisions applying a human rights
  analysis to family responsibilities accommodation
• What is the appropriate forum for addressing
  family responsibilities in the workplace?

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Law Reform Family Responsibilities
Discrimination

• Agenda
• Family Caregiving Law Reform Project
• Family Responsibilities Discrimination
• Scope of the family status ground
• International approaches
• Discussion What is the appropriate approach?

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Statistics on Family Caregiving

• Over 1 in 4 employed Canadians care for an
  elderly dependent
• The majority of caregivers work the equivalent of
  2 full time jobs
• Absenteeism due to caregiver strain costs
  Canadian employers over 1 billion dollars per year

Duxbury, Higgins and Shroeder, 2009
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Family Caregiving Law Reform Project

• Employment law
• Pensions
• Tax law
• Health Policy
• Human Rights
• http//www.bcli.org/bclrg/projects/family-caregiv
  ing

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Who are Family Caregivers?

• Family caregivers provide care for
• Adult children with disabilities
• Aging parents
• Cancer survivors
• People with chronic illnesses
• Addictions recovery

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Social Policy Context

• Aging population
• Declining birth rate
• Women in labour force in equal numbers
• Smaller families
• Shrinking labour force
• De-institutionalization of aspects of health care

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Law Reform Family Responsibilities
Discrimination

• Outcome
• People living longer lives of dependency
• Fewer non-working family members to focus on
  caregiving
• More working people balancing work and care
• Growing sandwich generation

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Employment Standards Act

• Limited support for family care
• Compassionate Care Leave 8 weeks unpaid leave
  for end-of-life care (s. 52.1)
• Family Responsibility Leave 5 days unpaid leave
  (s. 52)
• Employers may be required by Code to go beyond
  minimums

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Family Responsibilities Discrimination

• Family Status Discrimination
• B. v. Ontario (Human Rights Commission), 2002
  S.C.C. No.66
• Practices or attitudes that have the effect of
  limiting the conditions of employment of, or the
  employment opportunities available to, employees
  on the basis of a characteristic relating to
  their marriage (or non-marriage) or family (para.
  31)

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Family Responsibilities Discrimination

• Human Rights Approach
• Campbell River case restrictive test
• Whether a change in a term, or condition of
  employment, imposed by the employer results in
  serious interference with a substantial parental
  or other family duty

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Family Responsibilities Discrimination

• Problems with Human Rights approach
• Very few cases on adult caregiving
  responsibilities
• Meaning and scope of family status little upper
  level court guidance

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Family Responsibilities Discrimination

• Hoyt v. CNR, 2006 C.H.R.D. No. 33
• Facts
• Complainant required accommodation in pregnancy
  and parental obligations
• Employer offered several forms of accommodation,
  but none properly addressed her limitations
• Forced to take unpaid leave when could not secure
  child care on several weekend days

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Family Responsibilities Discrimination

• Hoyt v. CNR, 2006 C.H.R.D. No. 33
• Tribunal employer failed to accommodate
• Criticizes Campbell River decision
• CHRT it is inappropriate to create a more
  restrictive definition for one prohibited ground
  of discrimination than for other prohibited
  grounds (para. 120)

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Family Responsibilities Discrimination

• Johnstone v. Canada (Attorney General), 2007 FC
  26
• Facts
• Complainant requested fixed shifts when returned
  from maternity leave, to accommodate childcare
  arrangements
• Employers policy required that she accept
  part-time employment in return for fixed shifts

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Family Responsibilities Discrimination

• Johnstone v. Canada (Attorney General), 2007 FC
  26
• Commission dismissed complaint
• Federal Court allowed judicial review
• Federal Court there is no justification for
  requiring a higher standard of proof for
  discrimination based on family status, than for
  other grounds

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Family Responsibilities Discrimination

• Falardeau v. Ferguson Moving Ltd., 2009 BCHRT
  272
• Complainant was single father, terminated when
  refused to work overtime to be home with son.
• No prima facie discrimination son not special
  needs, only had to balance ordinary parental
  obligations with job requirements

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Family Responsibilities Discrimination

• Falardeau v. Ferguson Moving Ltd., 2009 BCHRT
  272
• No accommodation required overtime was regular
  part of job
• Highlights distinction between special family
  obligations and regular responsibilities

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Family Responsibilities Discrimination

• Rennie v. Peaches and Cream Skin Care Ltd., 2006
  AB HRC
• Complainant told she had to work one evening per
  week on return from maternity leave
• Terminated when refused to work evenings because
  could not get child care
• Held that accommodation in small workplace would
  cause undue hardship complaint dismissed

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Family Responsibilities Discrimination

• Criticisms of Campbell River
• Change must occur in the workplace
• Collapsing of prima facie discrimination and
  undue hardship aspects of analysis
• Excludes commonplace family responsibilities
• Human rights violation requires caregiving
  circumstances to be unique or extraordinary

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Family Responsibilities Discrimination

• Defences of Campbell River
• Floodgates many employees struggle to balance
  work vs. family responsibilities
• Need to draw a line for prima facie
  discrimination based on a family status
• If anyone can show prima facie discrimination,
  what would constitute undue hardship?

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Family Responsibilities Discrimination

• SCC on Family Status
• Family status captures both absolute and
  relative discrimination
• It is not necessary to situate a person within a
  larger group to make out discrimination
• B. v. Ontario

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Family Responsibilities Discrimination

• Grounds vs. Groups
• Discrimination in not only about groups. It is
  also about individuals who are arbitrarily
  disadvantaged for reasons having largely to do
  with attributed stereotypes, regardless of their
  actual merit Whether or not a disadvantaged
  group can be fashioned out of the facts of any
  particular case is largely irrelevant. The Code
  stipulates grounds in s. 5(1), not groups. The
  question is whether an individual has been
  discriminated against on the basis of a
  prohibited ground, not whether he or she
  necessarily fits into a group requiring redress.

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Family Responsibilities Discrimination

• Ontario HRC Policy on Family Status (2007)
• Accommodating caregiving needs in workplace is
  matter of flexibility
• Flexible approach will help attract and retain
  good employees
• Balance conflict between caregiving
  responsibility and employers requirements

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Family Responsibilities Discrimination

• Ontario HRC Policy on Family Status (2007)
• Administrative inconvenience not a factor in
  assessing undue hardship
• All employees will have to juggle demands of work
  and caregiving at some point

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Family Responsibilities Discrimination

• Ontario HRC Policy on Family Status (2007)
• Offer flexibility
• Leaves of absence
• Hours of work
• Reduced workweek
• Remote work
• Is there a negative attitude in workplace towards
  caregiving responsibilities?

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International Approaches

• UK Flexible Working regulation
• Requires employers to consider requests for
  variations in terms of employment needed to
  manage adult and child care responsibilities
• Lists potential grounds for refusal due to impact
  on business
• Employer discretion no right of appeal if timely
  response as per regulation

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International Approaches

• New Zealand Human Rights Act
• Includes family status as a ground
• Defines family status to include having the
  responsibility to care for children or other
  dependents

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International Approaches

• New South Wales, Anti-Discrimination Act
• Prohibits discrimination on the ground of a
  persons responsibilities as carer
• Requiring a person to comply with a condition of
  employment with which a substantially higher
  proportion of non-caregivers are able to comply
  is a form of discrimination

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International Approaches

• Equal Opportunities Act of Victoria
• Employer must accommodate employees
  responsibilities as parent or carer
• Act indicates that accommodation includes changes
  in hours of work and location of work, and
  rescheduling workplace meetings to accommodate
  the employee schedule

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International Approaches

• Australian Capital Territory, Sex-discrimination
  Act
• Discrimination on the ground of family
  responsibilities
• Less favorable treatment of employer may be the
  result of the family responsibilities of the
  employee

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Issues for Discussion

• Comparison of Employment vs. Human Rights
• Right to request vs. right to
• Both approaches have strengths and weaknesses

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Comparison of Employment vs. Human Rights

• Human rights approach
• Complaint model cost, timeliness, and
  time-consuming
• Must frame issue as an act of discrimination
• Applies to all employees
• Problems with family status ground
• Restrictive Campbell River test
• Quasi-constitutional nature

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Comparison of Employment vs. Human Rights

• Employment law approach
• Excluded employees
• No need to prove discrimination
• Clarifies that accommodation of caregiving is an
  employment issue
• Grants employer discretion

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Issues for Discussion

• Employers Perspective
• In defence of Campbell River and the serious
  interference test
• What constitutes undue hardship in responding to
  requests for workplace flexibility?
• How to balance needs for productive workplace and
  need to accommodate and retain key employees?

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Issues for Discussion

• Larger social policy question
• How should the costs of family caregiving be
  distributed between and amongst
• Individuals
• Families
• Community
• Employers
• Government

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Issues for Discussion

• To what extent should employers allow employees
  to adjust their work patterns to help balance
  work and care?
• i.e., hours of work, location, number of hours
• When will accommodation of employees request
  reach the level of undue hardship?

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Issues for Discussion

• Is the accommodation of family responsibilities a
  human rights issue?
• Should family responsibilities be extraordinary
  or rare in order to warrant a human rights
  response?

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• There was a time when a matter, such as
  work-life balance, would have been considered a
  private concern for families to work out. But
  when the economy, as well as families ability to
  live at prevailing community standards, depends
  on the supply of two workers per family, and when
  the fertility rate continues to drop, private
  risks tend to be defined as public crisis.
• Terrance Hunsley, Informal Caregivers
  Balancing Work and Life Responsibilities

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Law Reform to Address Family Responsibilities
Discrimination

• Krista James
• Staff Lawyer
• BC Law Institute

• Kacey A. Krenn
• Associate
• Harris Company LLP

Human Rights ConferenceNovember 5, 2009