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.

On December 3, 2008, Reach - a lawyer referral organization that helps people with all disabilities - in conjunction with Emond Harnden LLP, is hosting a conference entitled “Put Our Minds to Work: Re-Thinking Mental Health and Illness in the Workplace”. The conference looks to be a very interesting one as it deals with the accommodation of mental health disabilities, an area of accommodation which is often overlooked and misunderstood by employers and unions. The workshop topics for the conference include the legal framework for accommodation, accommodation strategies, overcoming stigma in the workplace, disclosure, and return-to-work programs.

Students can register for the conference for $35.00. It will be held from 7:30 to 3:30 at the Hampton Inn Ottawa Conference Centre. More information can be obtained by reading the conference brochure.

For more information, visit www.reach.ca, call 613.236.6636 (TTY: 613.236.9478) or send an e-mail to reach[at]reach[dot]ca.

How far-reaching is an employer’s duty to accommodate?  This question has been continuously debated in labour and employment jurisprudence for many years.  In the recent decision of Hydro-Quebec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000 (SCFP-FTQ)  (“Hydro-Quebec”), however, the Supreme Court of Canada has clarified the outer limits of this duty. 

Specifically, the Supreme Court addressed the extent of an employer’s duty to accommodate in light of the test set out in British Columbia (Public Service Employee Relations Commission) v. B.C.G.S.E.U. (“Meiorin”). As per Meiorin, an employer can justify a standard or actions which would otherwise be discriminatory if 3 steps are met. The third step involves demonstrating that it is “impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer”. It is the correct interpretation of this requirement which was addressed by the Supreme Court in Hydro-Quebec. 

The case involved an employee who was plagued by various physical and mental problems, particularly a personality disorder which resulted in deficient coping mechanisms.  This led to a high absence rate as well as difficult relationships with co-workers and supervisors. The situation persisted over several years despite a number of adjustments by the employer to her conditions of work. Eventually, and after receiving a psychiatric assessment which indicated that the employee would not have regular and continuous attendance in the future, the employer dismissed her.

The union challenged her termination. It suggested that the employer could have completely changed her work environment to eliminate the stressors which caused her inability to work in a satisfactory manner. The arbitrator found in favour of the employer, holding that this proposed accommodation, which would require continuous, periodic changes to the employee’s work environment and colleagues, would constitute undue hardship. The Superior Court agreed with the arbitrator’s assessment, but on appeal to the Quebec Court of Appeal the decision was reversed on the grounds that the threshold of impossibility had not been met by the employer. The employer launched an appeal to the Supreme Court.

The Supreme Court needed to assess what the scope of the duty to accommodate was, as per the ruling in Meiorin, and whether or not the employee had been properly accommodated within it.

Even though the Supreme Court emphasized that the goal of accommodation is to ensure that if an employee is able to work they are not unfairly excluded or prevented from doing so, it also concluded that the duty to accommodate, as per the approach articulated in Meiorin, has certain boundaries:

• It does not mean that the employer has to prove it was impossible to accommodate the employee;
• It does mean that the employer has to prove that accommodating the employee would cause undue hardship;
• The employer does not have a duty to change working conditions in a “fundamental way” ;
• The duty to accommodate does not extend to a complete alteration of the “essence” of the employment contract: the performance of work in exchange for remuneration;
• If the nature of an illness is such that the proper operation of the business is excessively hampered or the employee remains unable to perform the work for the reasonably foreseeable future even though the employer has made attempts to accommodate, undue hardship will be met.

The Supreme Court upheld the original decision of the arbitrator and overturned the decision of the Court of Appeal. The test for undue hardship had been met because the employer had tried for a number of years to adjust the employee’s working conditions and attempted to accommodate, but the employee was still unable to work for the reasonably foreseeable future.

In our opinion, this case, while dealing with a situation arising from the labour context, will also have important implications for non-unionized employees and employers. The Supreme Court has clarified several legal points about the duty to accommodate, as well as rejected an interpretation of the Meiorin test which could be the subject of debate in the adjudication of these types of disputes.

Furthermore, it must be recognized that assessing whether or not an employer has met its duty to accommodate obligations to their employee can be a difficult, complicated, and completely fact-driven inquiry. Indeed, the Supreme Court itself in this case recognized that “what is really required is … proof of undue hardship, which can take as many forms as there are circumstances.” While the waters are still (and probably always will be) murky as to what is legally required to satisfy the duty to accommodate to the point of undue hardship, the Supreme Court has, at minimum, clarified what it does not involve.

Authored by:  Heather Robson and Cheryl Waram, ELLSS