Alberta Arbitrator Reinforces Broadened Definition of Family Status Discrimination in Canada

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In SMS Equipment Inc. v. CEP, Local 707, 2015 CarswellAlta 385, 2015 ABQB 162 (Alta. Q.B.) (”SMS”), the Alberta Court of Queen’s Bench upheld an arbitrator’s determination that SMS Equipment Inc. was obligated to accommodate Ms. Renee Cahill-Saunders (the “grievor”) because the requirement for her to work rotating night and day shifts discriminated against her on the basis of family status, given that she was a single mother of two young children who encountered child care difficulties during night shifts.

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The broadening scope of family status protection has taken place in both the federal and provincial human rights context over the past several years as it relates to the child care obligations of employees. One of the leading cases on the issue in Canada up until the SMS decision was Canada (Attorney General) v. Johnstone (2014), 372 D.L.R. (4th) 730, 2014 FCA 110 (F.C.A.) (”Johnstone”), a decision in which the Federal Court of Appeal set out a test for making a finding of prima facie discrimination on the basis of family status as a result of child care obligations [at para. 93]:

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. . . in order to make out a prima facie case where workplace discrimination on the prohibited ground of family status resulting from childcare obligations is alleged, the individual advancing the claim must show (i) that a child is under his or her care and supervision; (ii) that the childcare obligation at issue engages the individual’s legal responsibility for that child, as opposed to a personal choice; (iii) that he or she has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible, and (iv) that the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation.

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In SMS, the union filed a grievance on behalf of the grievor, who worked as a first-year apprentice welder on a rotating shift schedule. Based on the employer’s refusal to accommodate the grievor’s request to work exclusively day shifts, which was supported by another employee who agreed to work only nights, the union claimed that the employer violated the prohibition against discrimination on the basis of family status, pursuant to the collective agreement and the Alberta Human Rights Act, R.S.A. 2000, c. A-25.5.

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The employer denied the grievance and argued that it had no obligation to accommodate the grievor as the requirement for her to work rotating night and days shifts does not discriminate on the basis of family status.

 

Overview

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In February 2012, the grievor gave birth to a second son, who has a different father. While she was on maternity leave, she saw the employer’s advertisement for a first-year welder apprentice position with shifts of “seven days on and seven days off with rotating tours of days and nights.” The grievor successfully applied for the position and returned to work with the employer on October 11, 2012, several months prior to the expiry of her maternity leave.

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On November 8, 2012, after her first night shift tour, the grievor requested, through an e-mail to the employer, that her shift be changed to straight day shifts as she was finding it “a bit difficult.”

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In April 2013, a meeting was scheduled between the employer and the grievor to discuss her accommodation request. The grievor advised that she was “barely making it” with all of her child care expenses and that, without child care during the days that she worked nights, she was not getting sufficient sleep. Issues were discussed regarding the contributions, or lack thereof, by her sons’ fathers to expenses and child care.

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Ultimately, it was determined that the employer’s rule requiring welders to work night shifts had the effect of imposing a burden on the grievor due to her child care responsibilities that is not imposed upon welders who do not share her status.

Notably, the employer called no evidence to justify the rule requiring the grievor and other employees to work rotating night and day shifts or any evidence that accommodating the grievor by permitting her to work exclusively days would cause it undue hardship.

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With respect to the test to establish prima facie discrimination, the court followed the Supreme Court of Canada’s decision in Moore v. British Columbia (Ministry of Education) (2012), 351 D.L.R. (4th) 451, [2012] 3 S.C.R. 360 (S.C.C.) (”Moore”), not the exact test set out in Johnstone. In doing so the court held that the complainant must show that [at para. 72]:

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1. the complainant has a characteristic that is protected from discrimination;

2. the complainant has experienced an adverse impact; and

3. the complainant must show that the protected characteristic was a factor in the adverse impact.

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In applying the Supreme Court of Canada’s test from Moore, the Court of Queen’s Bench of Alberta addressed the third step outlined in the Johnstone case regarding self-accommodation efforts, holding [at para. 77]:

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A flexible and contextual application of the Moore test does not justify the application of an entirely different test of prima facie discrimination, and particularly does not justify including within that test a self-accommodation element that is not required with respect to other prohibited grounds of discrimination. This is unnecessary and contrary to the objects of human rights law. It is unnecessary because a finding of discrimination does not automatically follow once a prima facie case is established. It is only when the complainant establishes a prima facie case and the respondent fails to justify the rule or conduct that discrimination will be found. It is contrary to the objects of human rights law because it imposes one-sided and intrusive inquiries on complainants in family status discrimination cases. Complainants are not only required to prove that a workplace rule has a discriminatory impact on them, but that they were unable to avoid that impact.

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In any event, the learned arbitrator did consider self-accommodation when he noted that there were steps the grievor could take in this regard, but held that [at para. 66]:

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. . . “whatever choices she made, if the fathers of her children financially contributed to their care or she drove a less expensive vehicle or she was able to access government subsidies, she would still be required to spend additional amounts of money to pay for childcare while she is not at work and that is an adverse effect of the Employer’s rule.”

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In other words, the proposed self-accommodation would not prevent the adverse effect.

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Notably, the court did indicate the extent of the grievor’s self-accommodation efforts might have been found insufficient had the employer provided some evidence in support of its rule, or some evidence of undue hardship, but there was no such evidence from the employer and in fact the employer had previously permitted other employees to work exclusively night shifts. The employer provided no reasons for rejecting the grievor’s request for accommodation.

 

Commentary

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This case may very well signal an opening of the floodgates for family status-based discrimination claims while increasing the cost of doing business for employers of all types and sizes.

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For employers, this decision may be a tough pill to swallow given the employee knew about the work environment before applying for the job. However, situations like this may be prevented when an employer has a logical explanation for the standard and an ability to show it must exist given it is a bona fide occupational requirement or the business would suffer undue hardship otherwise.

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Therefore, employers must consider refreshing their accommodation procedures to ensure issues impacting families are accounted for, including child care. It will not be as simple as stating the employee has an obligation to self-accommodate before an employer’s obligations kick in. With the ever increasing scope of human rights laws, individualized accommodation considerations are becoming an ever-present reality for employers of all sizes within all jurisdictions in Canada.

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If you have a workplace issue relating discrimination, family status or human rights, call a Toronto employment lawyer, Toronto labour lawyer and Toronto human rights lawyer at Stitz Litigation. We are an employment and labour law firm in Toronto with over half a decade of winning experience. Call for a free case assessment.

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