In a ruling that could set a precedent for all working parents and employers, the Canadian Human Rights Tribunal recently decided that employers must promote work-life balance.
In 2002, Fiona Johnston took a maternity leave from her job with the Canada Border Services Agency (CBSA) at Pearson Airport. Upon her return to work, she asked her employer for a more stable schedule to care for her new child. Employee shifts at the agency vary from day to evening or night, and can be subject to change with five days notice. Days off commonly fluctuate. This type of schedule made it impossible for Johnston and her husband—also a customs agent—to effectively juggle work and child care. The employer refused and suggested the employee give up full-time employment for a part-time position. The employee resigned herself to work part-time at reduced wages with no access to the CBSA benefits plan. However, she brought a complaint to the Canadian Human Rights Tribunal alleging that her employer engaged in a discriminatory practice on the prohibited ground of family status, as enumerated in Section 3(1) of the Canadian Human Rights Act.
Johnston complained that her employer failed to accommodate her family needs, and treated her adversely based on her family status, which in this case means the raising of two young children.
The CBSA’s position is that workers seeking accommodation for childcare obligations are doing so due to choices they have made in life, for which the employer bears no responsibility. Hence, while the employer is prepared to make some adjustments to such a worker’s schedule, it refers to these adjustments as “arrangements” as opposed to “accommodations”.
While not every childcare need gives rise to an employer obligation to accommodate, Johnston argued that her complicated and unpredictable schedule made it impossible to care for her children. Moreover, she knew that the agency had made exceptions to its unwritten “arrangement” policy, including giving static daytime shifts to some workers who had returned from maternity leave, and shifts longer than the regular eight hours per day.
According to the tribunal, the CBSA did not demonstrate that the compromises required would entail undue hardship.
The tribunal concluded that employers cannot discriminate against their employees should they choose to become parents. The employer’s refusal to accommodate the employee’s family status was indeed discriminatory, wilful and reckless, and ordered the employer to reimburse the lost wages and benefits, awarding $35,000 in damages. The tribunal also ordered the CBSA to implement within six months a plan to prevent situations that deprive employees that are parents from advancement within the company. The CBSA must develop a plan to prevent further incidents of discrimination based on family status and develop policies to specifically address family status accommodation requests.
This has been a hot topic of discussion in the last decade.
Essentially, the types of families that exist in Canada today are much more diverse and complex than in the past. About 25 percent of families are headed by single women. There are more divorces and common-law marriages, more blended and dual-custody families, and more families headed by lesbians, gays, bisexuals and transgendered persons. Moreover, there is an increase in cultural diversity among families, with an emphasis on extended family networks. In addition, there is a growing need to provide emotional, social, physical and financial care to family members. Women tend to provide the majority of caregiving for children, aging parents or relatives, or family members with disabilities.
Some people have negative beliefs about certain types of family structures or relationships. They may have opinions based on stereotypes regarding caregivers. These beliefs may influence one’s actions and decision-making abilities regarding employment. Family and marital status issues often overlap and are commonly cited together in discrimination complaints in order to better illustrate the nature of the complaint.
The majority of human rights statutes in Canada establish that an employer cannot discriminate against an employee on the basis of family status. However, in New Brunswick and Quebec, human rights legislation does not specifically include family status as a prohibited ground of discrimination.
Work today has also seen significant changes in recent years. More people than ever work night shifts and alternating shifts. Many others hold multiple jobs, leading to erratic schedules. Work is more likely than in the past to happen in several locations or at home. These factors combined with today’s new family realities have created a situation where it’s no longer acceptable for employers to demand employees conform to a strict schedule. Employees will have children, and they will likely require accommodation. And besides employers’ legal obligations, it just makes sense to work with employees to help them do their jobs as well as they can.
Imagine a company where several key employees take parental leave at or around the same time, and then return only to have their employer tell them they have to work part-time or not at all. Maybe the employer took on acceptable replacements for these employees while they were away, and maybe it will have some difficulty rearranging schedules to accommodate, but it is risking significant loss if those returning employees choose to go elsewhere, besides a possible drop in morale if they choose to stay. And would anyone considering having children in the future want to work for such a company?
In cases like the present one, there is also the question of gender bias, which often means women get treated differentially in employment—generally for the worse—because of their biological and traditional functions, in particular child-bearing and family care. This sort of prejudice and discrimination is deeply ingrained, and human rights law is just one method to discourage it.
So, sure businesses might sometimes face a hurdle or two in accommodating new parents at work, but should employers think so little of their employees that accommodation isn’t worth the effort? I think not. Employers should always be mindful that employees are in fact their greatest resource. Just feel lucky that you don’t have to give your employees five weeks of yearly vacation like in many parts of Europe!