Anyone who has litigated human rights, or who has done research for said litigation, understands the challenges of putting together a claim for discrimination. However, that challenge becomes even more difficult when filing a claim for discrimination on the ground of family status. According to a relatively recent article in Canadian Lawyer Magazine (http://www.canadianlawyermag.com/), human rights tribunals, labour arbitrators and the courts will be faced more and more frequently with cases revolving around issues such as workplace flexibility and discrimination on the basis of family status, as families increasingly find themselves struggling to balance work and personal responsibilities. Unfortunately, the case law has not been very helpful, nor has it been very forgiving to these families.

In a 2004 British Columbia Court of Appeal case, Health Sciences Association of B.C. v. Campbell River and North Island Transition Society, the court held that in order to meet the prima facie threshold for discrimination on the basis of family status, it must be the employer who changes a term of employment resulting in serious interference with a substantial parental or other family obligation. At that point, the employer must prove that the change was a bona fide occupational requirement. However, the article points out that a “serious interference” isn’t required for a finding of discrimination on other grounds.

The Federal Court, and the Federal Court of Appeal, agreed in Hoyt v. Canadian National Railway, that, “The suggestion by the court in Campbell River…that prima facie discrimination will only arise where the employer changes the conditions of employment seems to be…unworkable and, with respect, wrong in law.” Meanwhile, Quebec’s human rights legislation doesn’t protect against discrimination based on family status, meaning that employers in Quebec have no duty to accommodate families hoping for flexibility in the workplace.

The article also suggests that the challenge becomes greater for human rights advocates when employers use the downturn in the economy as a defence for the termination of an employee. It has become easier for employers to argue that accommodation on the basis of family status would involve undue hardship. And, despite the conflicting case law across jurisdictions, the theme in many cases is that it is the responsibility of parents to make external arrangements for child care. In other words: get to work.

Cited from:

Glenn Kauth, “Accomodating for Family Status” (August, 2009) Canadian Lawyer Magazine.

Though this post doesn’t deal with employment or labour law per se, something that I think all law students can relate to is the issue of what employment in the legal profession has in store for us. In a recent Equality Rights class, students briefly discussed equality concerns for women entering into the legal profession, and there have been echoes of this in the Human Rights portion of my Employment Law class. For example, the distribution of women to men in law school now stands at approximately 60%-40%. However, it has also been shown that women are leaving private practice legal careers in droves. Why this trend? Is it because, as someone I know suggested, “women can’t take the heat”?

Needless to say, I highly doubt it. As a woman, a law student, and someone who wants a challenging and fulfilling career and a family, I take exception to the attitude that it is some inherent deficiency in women that is the source of this problem.

Which is why I was happy to come across a report by The Law Society of Upper Canada’s Retention of Women in Private Practice Working Group. The report presents research findings such as the following:

• The most immediate issues for women in private practice appear to result from childbirth and parenting responsibilities
• Women are particularly affected by the unavailability of support and benefits such as part-time partnerships, part-time employment, predictable hours, job sharing and flexibility in hours
• Women from Aboriginal, Francophone and /or equality-seeking communities are often more vulnerable
• Barriers faced by women are systemic and will require organizational and cultural change
• A number of initiatives designed to assist women would also benefit male lawyers
• Women in small firms and sole practices are particularly vulnerable because they do not have the financial or human resources to take leaves.

The report also makes numerous recommendations, based specifically on the size of firms, on available resources, on specific groups of women, on how work can be done within law schools, and on how to continue to effectively assess the progress of programs that have been implemented and strategize for future change.

One recommendation is for the creation of the Justicia Think Tank. In a recent press release, the Law Society of Upper Canada described this think tank as a three-year pilot project committed to identifying and adopting principles and practices that promote the retention and advancement of women in the private practice of law, and which includes representatives from 40 medium- and large-sized firms. Participating firms have signed written commitments to achieve goals in the areas of:

• Tracking demographics
• Flexible work arrangements
• Networking and business development
• Mentoring and leadership skills development for women

My fingers are crossed that the recommendations in the report by the Retention of Women in Private Practice Working Group, and the Justicia Think Tank Project produce some satisfying outcomes for women in the legal profession in the years ahead.

More information can be found at the Law Society of Upper Canada’s website.