Human Rights Series
Family vs. Work – The Family Status Protection
The Ontario Human Rights Code says employees cannot be discriminated against at the workplace because of family status.
Family status – what does it mean, what does it include, and what do you need to know?
Interestingly, there has not been many cases or discussions around family status even though the Human Rights Code is 35 years old. That is, until the last few years. What we know is based on the limited cases, as well, somewhat of an extrapolation from those cases.
The definition
The Human Rights Code says the term means “the status of being in a parent and child relationship”.
Right off the bat, this is a very narrow definition. Another province in Canada includes in their definition relations to another person by blood, marriage, or adoption. In Ontario, you have to demonstrate that you are in a parent and child relationship.
This includes the care of your children when you are the parent. It also includes the care of your (usually elderly, not always) parent, when you are the child.
The definition does not say you have to be in a biological or adoptive parent and child relationship. If you are in a strongly dependent relationship that acts considerably like a parent and child relationship, talk to your employment lawyer about whether you have any rights at all.
Common workplace challenges involving family status
If, because of the care of your parent or child, you are at a disadvantage at work, you should have access to accommodation. The purpose of the accommodation would be to give you equal access to what your other coworkers have available to them.
Common examples where this may come up include:
- If your employer requires you to start work at 6am, but you cannot because your child’s daycare does not open until 7am, and you have no other childcare alternative
- If you are aiming for a promotion but are at a disadvantage compared to other candidates because you are unable to network after work hours
- If you are unable to take on more workload than normal because of child or elder care obligations, but your other coworkers do to get ahead
Note, not all scenarios with a family status element amount to discrimination.
For example, some organizations hire because of family status, such as when children of employees receive priority consideration for summer student positions, and that may be permissible. Some workplace policies have restrictions against individuals who are married to one another or who are in a parent and child relationship working together, and that may also be permissible.
If you have concerns, explore with your employment lawyer first before concluding you have a discrimination case based on family status.
What do you have to show?
To invoke family status, you will have to show what your child or elder care responsibilities are. What are your duties? What are your needs? What are you looking to achieve?
In one of the earlier cases involving a scheduling issue for a female employee with childcare obligations*, our courts said employees had to demonstrate that the care obligation was a legal obligation, not just a personal preference.
This may no longer be the case. While this point is far from settled to dust, the law appears to recognize that this is not possible in all family status cases. For example, an employee may have a very tough time proving that his or her elder care obligation stems out of a legal one, not just personal preference.
In September 2016, the Ontario Human Rights Tribunal* explicitly recognized the above, and it is positive progress. Along with childcare related concerns, eldercare issues have become more and more prevalent. It may not be practicable or affordable for many to hire help for the care of their parents, and the care does fall on their shoulders. What may be tricky is when a number of siblings share the care of the same parent. In that case, it would be a roadblock, and a ridiculous scenario, if each sibling had to prove their legal obligation for each of "their share".
That being said, be prepared to demonstrate that there is a real need, not just personal preference.
Disadvantage at work
Once you show that you have child or elder care responsibilities, you then demonstrate that, because of your circumstances, you are at a real disadvantage.
Be prepared to defend your disadvantage. Is it your ability to care for your child or elderly parent being affected? Is your ability to perform work getting impacted? Or is your opportunity at work at stake?
You will need to be able to justify this, which may depend on:
- the unique circumstances you are in
- the history of your own development at that organization, and perhaps of others
- company policies, and how they have been complied with (or not)
- what others have said to you
- and others
It may be easier to prove in certain circumstances than others. Either way, once you are able to demonstrate that you have been disadvantaged, your employer should be exploring how best to accommodate you.
Communication is key
Like all cases involving a discrimination claim, you have an obligation to first bring up the issue. Your employer needs to know the circumstances you are in, so that they can do something about it.
Be prepared to share what options you have already considered, what has worked and what has not worked, and what you consider to be other options that may be available to you.
You should be able to talk about what is getting in the way. Is it budget or finances, geographic location, timing and scheduling, or particular skills? You should explore these issues with your employer.
You should not have to self-accommodate
The same earlier case* involving childcare obligations and scheduling issues required the employee to show that they have, on their own, met their obligations through reasonable alternative solutions, to no avail. Again, this is no longer necessarily the case.
Self-accommodation as a requirement may be overly stringent.
The Ontario Human Rights Tribunal* pointed this out. Take an employee with a disability-related issue. He or she is not required to self-accommodate, or, find solutions to get equal access at work on their own. In fact, that is the case for all other protected grounds, except for family status, that is, until recently. To require an employee with a family status concern to do so would put that employee in a worse off position. This kind of "protected grounds hierarchy" is unfair.
That said, talk to your employment lawyer nonetheless and discuss whether it would be to your strategic advantage to try and self-accommodate, and if so, share it with your employer. Often, it helps boosts your case than not.
Keep an open mind
Explore different options. Be prepared that work schedules and other work conditions may have to be adjusted from time to time.
If your employer offers access to employment assistant programs or other similar programs, take advantage of it. Show that you are trying it, or, explain why they are not suitable.
If your accommodation needs to happen in stages, let that be the case. The solution is not always all or nothing. There could be a transitional or temporary solution while a more permanent solution is being established. There could be a trial and error period.
Life plans change
And so should your communication.
If circumstances change where you need to revisit the issue with your employer, raise it timely. The most important thing is there should be an ongoing dialogue. The conversation should not end at the first discussion.
As long as you are doing your part in exploring options and raising concerns, you should not have to go out of your way or continue suffering the disadvantage.
Next in the series, we discuss disability at the workplace.
For other articles in the Human Rights Series:
Discrimination at the Workplace - Introduction
For discussion on Leave of Absence related to care of family members:
Let's Talk About LEAVES - Part I. Maternity and Parental
Let's Talk About LEAVES - Part III. Health Related Leaves (Ontario)
*The earlier cases are Johnstone v. Canada (Attorney General) at the Federal Court of Appeal, which was followed by the Ontario Superior Court in Patridge v. Botony Dental Corp. The recent case where the Ontario Human Rights Tribunal took family status to a new turn is Misetich v. Value Village Stores Inc., decided in September 2016.
