May 14, 2019

While work obligations often interfere with family time, not every such interference engages human rights protections. However, since the law on family status discrimination remains unsettled, with different tests being adopted in different jurisdictions, it can be difficult for employers, unions, and workers to understand where to draw the line with respect to workplace accommodations. In this session, legal experts will review the most recent caselaw on family status and bring you up to date on this quickly evolving area of law, addressing issues such as:

  • Establishing discrimination: How does the test to establish family status discrimination differ between jurisdictions? Must a worker’s family responsibilities be extraordinary or unusual in order to establish a prima facie case? Is it more difficult to establish a legal obligation with respect to eldercare than it is for childcare?
  • Preferences vs. obligations: Does every conflict between work and familial obligations trigger the duty to accommodate? Where do adjudicators draw the line between family care obligations, which are entitled to protection, and preferences, which are not? Does the answer vary depending on jurisdiction?
  • Providing information: What information is an employee required to provide in order to substantiate a request for family status accommodation? How can an employee demonstrate that he or she made reasonable efforts to balance family and work obligations and that a workplace accommodation is the only reasonable solution?
  • Obligation to self-accommodate: Are employees required to first attempt to “self-accommodate” before requesting family status accommodations? To what extent can the employer inquire into such efforts and question whether the employee has made reasonable attempts to balance his or her family and work obligations? For instance, can an employee be asked to alter child or elder care arrangements to facilitate scheduling?
  • Undue hardship: What type of evidence will an employer need to call to show that it has accommodated an employee’s family status needs to the point of undue hardship?
  • Looking ahead: With recent decisions criticizing the “hierarchy between different human rights,” and the higher burden required to establish family status discrimination than for other protected grounds, will we start to see more adjudicators adopt the Supreme Court of Canada’s three-part test for discrimination from Moore v. British Columbia (Education)?