Sheila Osborne-Brown Senior Counsel, Canadian Human Rights Commission February 17-18, 2017

1. “This is a very good conversation”: guidance from law and policy in support of the collaborative search for family status accommodation in the employment context Law, Work and Family Care: A Symposium Sheila Osborne-Brown Senior Counsel, Canadian Human Rights Commission February 17-18, 2017

2. “I have introduced myself. You have introduced yourself. This is a very good conversation.” Lord Katsumoto, speaking to Captain Nathan Algren, in the movie The Last Samurai (2003)

3. Family Status: Two (Good) Conversations 1) Jurisprudential Conversation among human rights tribunals, labour arbitrators, and courts. 2) Accommodation Conversation between employers and employees (and sometimes unions).

4. Overview • The Jurisprudential Conversation • Family Status in the Workplace: Two Principles • Flexibility First • The Accommodation Conversation • Family Status: Some Issues to Think About

5. Family Status: Jurisprudential Conversation • A v. B., [2002] 3 SCR 403 • Canadian Staff Union v. CUPE [2006] NSLAA No. 15 (Reynolds Grievance). • Hoyt v. Canadian National Railway, 2006 CHRT 33 • Johnstonev. Canada (Attorney General) [2007] F.C.J. No. 43, upheld by Federal Court of Appeal, [2008] F.C.J. No.427. Rawleigh v. Canada Safeway Ltd., [2009] AHRC 6 • Rajotte v. The President of the Canada Border Services Agency et. al. 2009 PSST 0025

6. Family Status: Jurisprudential Conversation (cont’d) • Power Stream and International Brotherhood of Electrical Workers, [2009] O.L.A.A. No. 447 • Falardeau v. Ferguson Moving (1990) Ltd., 2009 BCHRT 272 • Johnstone v. Canada (Attorney General), [2014] FCA 110, affirming [2013] FC 113, which upheld 2010 CHRT 20 • Seeley v. Canadian National Railway, 2014 FCA 111 (affirming 2013 FC 117, which upheld 2010 CHRT 23) • Devaney v. ZRV Holdings Limited, 2012 HRTO 1590

7. Family Status: Jurisprudential Conversation (cont’d) • AG Canada v. Hicks 2015 FC 599, upholding 2013 CHRT 20 • Patridge v. Botony Dental Corporation, 2015 ONSC 343, (upheld 2015 ONCA 836 • SMS Equipment Inc. v. Communications, Energy and Paperworkers Union, Local 707, [2013] AGAA No. 41; upheld 2015 ABQB 162. • Misetich v. Value Village Stores Inc., 2016 HRTO 1229 • A.B. v. Yellowknife (City) (No. 1) (April 13, 2016), (N.W.T.H.R.A.P.)

8. Confusion or consensus? • The Bad News: - We seem to be mired in a debate about tests. • The Good News: - We are no longer debating whether caregiving falls within “family status”! - Overall, there seems to be points of consensus.

9. Points of Consensus • Family status includes obligations related to child care and elder care. • No hierarchy of grounds in statutory human rights law. • Starting point for proving a prima facie case of family status discrimination is one of the tests that is generally applied – either, or both of, Moore and O’Malley.

10. Points of Consensus (cont’d) • Not enough for an employee to simply state: “I have a family status situation” in order to show a need for accommodation. Have to give more information. • Needs, not wants, fall within “family status”. • Employee has to put reasonable effort into trying to arrange care using own network of friends, family, paid caregivers either before or during the accommodation process.

11. Points of Consensus (cont’d) • Need for accommodation can arise when employer changes a workplace situation or rule, or when employee’s personal family circumstance changes, or both. • Both employer and employee have to participate in the accommodation process, but employer bears the principal responsibility for arranging accommodation within the workplace.

12. Guidance… • Guidance for employers, employees, unions – maybe they can avoid the hearing room or the court room • Tests – applied in hindsight – often do not overlay onto the workplace process. • Meaningful accommodation conversation = meaningful and responsive accommodation.

13. Family Status and Caregiving:Overarching Principles • Flexibility First • Accommodation of Needs – Consistent with Obligations

14. Policy guidance: managing caregiving

15. Flexibility First: Flexible Work Arrangements • Include: • different, or shifting start and end times • compressed schedule • tele-work • extended maternity or parental leave • compassionate, discretionary, or other leave to care for sick family members • leave to provide child or elder care in unanticipated or emergency situations • shift changes • job sharing • part-time work with pro-rated benefits • shifting or sharing work duties or tasks

16. Flexibility in the workplace... • This is not a new idea – but how many workers have these options?

17. '9 to 5' Turns 35, and It's Still Radical Today “A generation after '9 to 5,' screenwriter Patricia Resnick reflects on sexism in Hollywood and how most Americans would kill to work 9-to-5 today.” '9 to 5,' starring Lily Tomlin, Dolly Parton and Jane Fonda, was released December 19, 1980 Rolling Stone Magazine, December 2015

18. Caregiving situations: Accommodation of needs Back to the accommodation conversation… • Putting aside tests for a moment – does the language of “needs” help with a practical understanding of the types of caregiving situations that an employer must accommodate?

19. Canadian Human Rights Act - Purpose All individuals should have the opportunity equal with others: • to make the life they are able to and wish to have, • to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered or prevented from doing so by discriminatory practices based on one or more of the prohibited grounds (including family status). (Paraphrased from section 2, CHRA)

20. Purposive Interpretation… “(T)he purposive interpretation to be affixed to s. 2 of the CHRA is a clear recognition within the context of “family status” of a parent’s rights and duty to strike a balance coupled with a clear duty on the part of an employer to facilitate and accommodate that balance…. To consider any lesser approach to the problems facing the modern family within the employment environment is to render meaningless the concept of “family status” as a ground of discrimination.” Brown v Department of National Revenue (Customs and Excise), Tribunal Decision April 20 T.D. 7/93 (C.H.R.T.) at page 20.

21. The Accommodation Conversation Employee: • request accommodation, • explain why accommodation required, so that needs are known, • make needs known to the best of their ability, preferably in writing, • answer questions or provide information about relevant restrictions or limitations, including information from health care professionals, where appropriate and as needed,

22. The Accommodation Conversation (cont’d) • take part in discussions on possible accommodation solutions, • co-operate with any experts whose assistance is required, • work with employer on ongoing basis to manage accommodation process. OHRC - Human Rights At Work – 3rd ed.

23. The Accommodation Conversation (cont’d) Manager: • Remember what is acceptable in one family may not be in another, • Don’t give in to knee jerk reaction based on own experiences or arising out of biases, • “Accept employee’s request in good faith unless legitimate reasons for acting otherwise”,* • Accommodation up to the point of undue hardship, • Take time to listen – accommodation must be meaningful and responsive. *OHRC Human Rights At Work

24. The Accommodation Conversation (cont’d) An open-minded and creative deliberative process significantly increases the prospects for finding a feasible accommodation to the needs of a disabled employee, or other worker with needs whose accommodation is endorsed under human rights legislation. ... The wider the range of discussions and inquiry, the greater the chance that a workable accommodation will be discovered. ...Such deliberations and inquiries do not just make sense from the perspective of effective enforcement of anti-discrimination statutes. They also make good business sense. (Emphasis added) David Lepofsky “The Duty to Accommodate: A Purposive Approach”, (1992) 1 Canadian Labour Law Journal, Vol. 1, page 1, at p. 14.

25. Accommodation Conversation (cont’d)Employer: Assessing a Request for FS Accommodation • Relationship of employee to person receiving care; • Specifics of the care that the recipient needs (e.g. what is needed, why, how often, when); • How long the person will need care (e.g. short term, long term, indefinite); • Why the employee should be the one to provide the care required;

26. Assessing a Request for FS Accommodation (cont’d.) • Why providing the care is an obligation and not just a personal choice; • What realistic alternatives are available (e.g. friends and family, day care, home care, community supports); • What efforts have been made to reconcile work and caregiving obligations; • Why these efforts were unsuccessful; • What accommodation is needed from the employer.

27. Caregiving obligations: Everybody has a role Employee Employer Remove discriminatory barriers Participate in discussions and consider alternatives Offer reasonable and dignified solutions to accommodate Remain open to adjusting Union Participate in discussions and consider alternatives Allow exceptions to union rules and terms of collective agreements and remain open to adjusting • Build support system and plan ahead • Bring needs forward • Demonstrate genuine obligation • Demonstrate reasonable exploration of alternatives • Participate in discussions and consider alternatives • Agree to reasonable workplace arrangements • Remain open to adjusting

29. Continuing the Good Conversations (and not just at dinner this evening…) • Legislative response? – Eg. Federal Government is weighing in with proposing possibility of flexible work arrangements in Canada Labour Code. • Mental Health – Will flexible work arrangements and meaningful accommodation for caregiving improve Canadians mental health? • Education - How do we bring more awareness of accommodation for caregiving to employees, managers and unions?

30. Comments?Questions?Thank you, Merci