A recent decision by the Supreme Court of British Columbia provides employers with a few more insights when it comes to family status accommodation.
The case concerned Brian Suen, an environmental project manager at Envirocon based in Burnaby. He had worked there since 2012 and occasionally had to work out of town. But after the birth of his daughter in September 2015, Suen was told he had to take on a project in Manitoba starting in January — for at least two months.
Suen was told there would be no rotations home and the company would not pay for him to come home on weekends. After considering the project, Suen declined, citing his wife and four-month-old baby, even though he was told his refusal could “mean discipline up to and including termination summarily for just cause.”
Suen’s employment was subsequently terminated, and he filed a complaint with the human rights tribunal in July 2016. He alleged Envirocon failed to accommodate him, that he was discriminated against on the basis of his family status, and the termination based on his family status had caused adverse consequences.
Envirocon’s application to dismiss this complaint on a preliminary basis was denied, so the company sought judicial review of the tribunal’s decision. It argued the test set out by the B.C. Court of Appeal in 2014 in Health Sciences Assoc. of B.C. v. Campbell River and North Island Transition Society was incorrectly applied, and it was binding law.
But the Supreme Court disagreed, in dismissing the petition. It said the tribunal did not make a legal error or apply the wrong legal test in applying both the Campbell River and Moore tests in determining Suen had made out a prima facie case of discrimination.
The Campbell River test required there to be a change in a term of condition of employment that resulted in a serious interference with a substantial parental or other family duty or obligation.
The Moore test (from the 2012 Moore v. British Columbia (Education)) required that complainants had a characteristic protected from discrimination under the code, they experienced an adverse impact with respect to the service, and the protected characteristic was a factor in the adverse impact.
The Suen case is a reminder that the test for family status discrimination is still not settled, said Katy Allen, an associate at Lawson Lundell in Vancouver.
“The view on employers’ side counsel has been that (the Campbell River test) was aimed at saying not every parental obligation is going to result in the employee being accommodated — for instance, for a particular schedule they need. That case was really saying you need something more than just what all parents face, the work-life balance that all parents face.”
But the decision has been criticized for conflating the prima facie test for discrimination with the second stage, “which is was there a bona fide occupational requirement and would there be undue hardship on the employer?” she said.
“Our view is that if (an employer’s) goal is certainty and to ensure your decision is going to be in line with human rights law and you’re not going to get into a dispute, it’s safest to look at Campbell River, yes, but also the Moore test and take a broader view to see what steps should be taken to accommodate.”
This is a very difficult area for employers, as the state of the law — meaning the applicable legal test — is currently being challenged in B.C., said Erin Brandt, a lawyer at Kent Employment Law in Vancouver.
“This creates uncertainty for employers with respect to how far protection on the basis of family status extends, and what specific situations will require accommodation by the employer,” she said.
But this particular case opens the door to a broadening of family status protection, according to Brandt.
It confirms the significant role fathers play in their children’s lives, and the significant role women play in the workplace, she said, citing the tribunal’s rejection of “stereotypical views of the respective roles of mothers and fathers in both the public and private spheres.”
The tribunal found these views “not only harmful to women in their ability to participate free of impediment in social and economic life at the workplace, but also to men and their ability to participate in social and cultural life at home.”
It’s an interesting question, said Allen, as to whether that was about mothers’ and fathers’ roles or rather primary caregivers versus secondary caregivers, and if it would have been the same conclusion if it had been the wife being sent away for two months.
The Supreme Court’s ruling was also noteworthy in that most family status cases concern scheduling, but this one was about a lengthy absence, she said. The tribunal indicated you can’t necessarily draw a perfect analogy between the two, and there’s “a different type of adverse impact on the employee,” she said.