Family Status Discrimination – the Federal Court of Appeal Rules

Balancing work and life is a challenge. We all wish we could take time off from work for every personal and family activity that takes place during work hours and in most provinces, human rights laws have created protection against what is referred to as “family status” discrimination. There has been much confusion over the interpretion of this language. Employees want time off and flexible schedules to spend time with their families. Employers need employees to be working at certain times and, for operational needs, often cannot accommodate every request – even if they wanted to. Conflicting decisions from different courts have created a real need for clarity. In the last year, the law has been interpreted to require employers to give employees time off to attend sporting events for their children, work different shifts to be able to work with a baby-sitter of their choice, etc. Other interpretations have held that only substantial family needs had to be accommmodated.

Thankfully, two Federal Court of Appeal (FCA) decisions released last month clarified federal law on the issue. In Attorney General of Canada v. Fiona-Ann Johnstone and Canadian Human Rights Commission, [2014] FCA 110 and Canadian National Railway Company v. Denise Seeley and Canadian Human Rights Commission [2014] FCA 111, the FCA determined that the term family status does not extend to elective family requests that are a preference and only need be accorded to those that are a substantial obligation. For example, if a parent was subject to a custody order that only gave him/her access to a child on specific weekends, it might be appropriate for that parent’s employer to give them that weekend off. Conversely, giving time off to attend a soccer game would likely not need to be accommodated. Regardless of the situation, the court emphasized the need for employers and employees to have constructive dialogue when faced with a family status issue – no different than for any other form of human rights obligation.

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