Law Reform to Address Family Responsibilities Discrimination

Krista James Staff Lawyer BC Law Institute Kacey A. Krenn Associate Harris & Company LLP Law Reform to Address Family Responsibilities Discrimination Human Rights ConferenceNovember 5, 2009

Law Reform: Family Responsibilities Discrimination Objectives • Review recent decisions applying a human rights analysis to family responsibilities accommodation • What is the appropriate forum for addressing family responsibilities in the workplace?

Law Reform: Family Responsibilities Discrimination Agenda • Family Caregiving Law Reform Project • Family Responsibilities Discrimination • Scope of the “family status” ground • International approaches • Discussion: What is the appropriate approach?

Statistics on Family Caregiving • Over 1 in 4 employed Canadians care for an elderly dependent • The majority of caregivers work the equivalent of 2 full time jobs • Absenteeism due to caregiver strain costs Canadian employers over 1 billion dollars per year Duxbury, Higgins and Shroeder, 2009

Family Caregiving Law Reform Project • Employment law • Pensions • Tax law • Health Policy • Human Rights http://www.bcli.org/bclrg/projects/family-caregiving

Who are Family Caregivers? Family caregivers provide care for: • Adult children with disabilities • Aging parents • Cancer survivors • People with chronic illnesses • Addictions recovery

Social Policy Context • Aging population • Declining birth rate • Women in labour force in equal numbers • Smaller families • Shrinking labour force • De-institutionalization of aspects of health care

Law Reform: Family Responsibilities Discrimination Outcome • People living longer lives of dependency • Fewer non-working family members to focus on caregiving • More working people balancing work and care • Growing “sandwich” generation

Employment Standards Act • Limited support for family care • Compassionate Care Leave: 8 weeks unpaid leave for end-of-life care (s. 52.1) • Family Responsibility Leave: 5 days unpaid leave (s. 52) • Employers may be required by Code to go beyond minimums

Family Responsibilities Discrimination “Family Status Discrimination” • B. v. Ontario (Human Rights Commission), [2002] S.C.C. No.66 • [P]ractices or attitudes that have the effect of limiting the conditions of employment of, or the employment opportunities available to, employees on the basis of a characteristic relating to their marriage (or non-marriage) or family (para. 31)

Family Responsibilities Discrimination Human Rights Approach • Campbell River case – restrictive test • Whether “a change in a term, or condition of employment, imposed by the employer results in serious interference with a substantial parental or other family duty”

Family Responsibilities Discrimination Problems with Human Rights approach • Very few cases on adult caregiving responsibilities • Meaning and scope of family status – little upper level court guidance

Family Responsibilities Discrimination Hoyt v. CNR, [2006] C.H.R.D. No. 33 • Facts: • Complainant required accommodation in pregnancy and parental obligations • Employer offered several forms of accommodation, but none properly addressed her limitations • Forced to take unpaid leave when could not secure child care on several weekend days

Family Responsibilities Discrimination Hoyt v. CNR, [2006] C.H.R.D. No. 33 • Tribunal: employer failed to accommodate • Criticizes Campbell River decision • CHRT: it is inappropriate to create a more restrictive definition for one prohibited ground of discrimination than for other prohibited grounds (para. 120)

Family Responsibilities Discrimination Johnstone v. Canada (Attorney General), 2007 FC 26 • Facts: • Complainant requested fixed shifts when returned from maternity leave, to accommodate childcare arrangements • Employer’s policy required that she accept part-time employment in return for fixed shifts

Family Responsibilities Discrimination Johnstone v. Canada (Attorney General), 2007 FC 26 • Commission dismissed complaint • Federal Court allowed judicial review • Federal Court: there is no justification for requiring a higher standard of proof for discrimination based on family status, than for other grounds

Family Responsibilities Discrimination Falardeau v. Ferguson Moving Ltd., 2009 BCHRT 272 • Complainant was single father, terminated when refused to work overtime to be home with son. • No prima facie discrimination – son not special needs, only had to balance “ordinary” parental obligations with job requirements

Family Responsibilities Discrimination Falardeau v. Ferguson Moving Ltd., 2009 BCHRT 272 • No accommodation required – overtime was regular part of job • Highlights distinction between special family obligations and “regular” responsibilities

Family Responsibilities Discrimination Rennie v. Peaches and Cream Skin Care Ltd., 2006 AB HRC • Complainant told she had to work one evening per week on return from maternity leave • Terminated when refused to work evenings because could not get child care • Held that accommodation in small workplace would cause undue hardship; complaint dismissed

Family Responsibilities Discrimination Criticisms of Campbell River • Change must occur in the workplace • Collapsing of prima facie discrimination and undue hardship aspects of analysis • Excludes commonplace family responsibilities • Human rights violation requires caregiving circumstances to be unique or extraordinary

Family Responsibilities Discrimination Defences of Campbell River • Floodgates: many employees struggle to balance work vs. family responsibilities • Need to draw a line for prima facie discrimination based on a family status • If anyone can show prima facie discrimination, what would constitute undue hardship?

Family Responsibilities Discrimination SCC on Family Status • Family status captures both “absolute” and “relative discrimination” • It is not necessary to situate a person within a larger group to make out discrimination [B. v. Ontario]

Family Responsibilities Discrimination Grounds vs. Groups • Discrimination in not only about groups. It is also about individuals who are arbitrarily disadvantaged for reasons having largely to do with attributed stereotypes, regardless of their actual merit… Whether or not a disadvantaged group can be fashioned out of the facts of any particular case is largely irrelevant. The Code stipulates grounds in s. 5(1), not groups. The question is whether an individual has been discriminated against on the basis of a prohibited ground, not whether he or she necessarily fits into a group requiring redress.

Family Responsibilities Discrimination Ontario HRC: Policy on Family Status (2007) • Accommodating caregiving needs in workplace is matter of flexibility • Flexible approach will help attract and retain good employees • Balance conflict between caregiving responsibility and employer’s requirements

Family Responsibilities Discrimination Ontario HRC: Policy on Family Status (2007) • Administrative inconvenience not a factor in assessing undue hardship • All employees will have to juggle demands of work and caregiving at some point

Family Responsibilities Discrimination Ontario HRC: Policy on Family Status (2007) • Offer flexibility: • Leaves of absence • Hours of work • Reduced workweek • Remote work • Is there a negative attitude in workplace towards caregiving responsibilities?

International Approaches UK Flexible Working regulation • Requires employers to consider requests for variations in terms of employment needed to manage adult and child care responsibilities • Lists potential grounds for refusal due to impact on business • Employer discretion; no right of appeal if timely response as per regulation

International Approaches New Zealand Human Rights Act • Includes family status as a ground • Defines family status to include having the responsibility to care for children or other dependents

International Approaches New South Wales, Anti-Discrimination Act • Prohibits discrimination on the ground of a person’s responsibilities as carer • Requiring a person to comply with a condition of employment with which a substantially higher proportion of non-caregivers are able to comply is a form of discrimination

International Approaches Equal Opportunities Act of Victoria • Employer must accommodate employee’s responsibilities as parent or carer • Act indicates that accommodation includes changes in hours of work and location of work, and rescheduling workplace meetings to accommodate the employee’ schedule

International Approaches Australian Capital Territory, Sex-discrimination Act • Discrimination on the ground of family responsibilities • Less favorable treatment of employer may be the result of the family responsibilities of the employee

Issues for Discussion Comparison of Employment vs. Human Rights • “Right to request” vs. “right to” • Both approaches have strengths and weaknesses

Comparison of Employment vs. Human Rights Human rights approach • Complaint model: cost, timeliness, and time-consuming • Must frame issue as an act of discrimination • Applies to all employees • Problems with family status ground • Restrictive Campbell River test • Quasi-constitutional nature

Comparison of Employment vs. Human Rights Employment law approach • Excluded employees • No need to prove discrimination • Clarifies that accommodation of caregiving is an employment issue • Grants employer discretion

Issues for Discussion Employer’s Perspective • In defence of Campbell River and the “serious interference” test • What constitutes undue hardship in responding to requests for workplace flexibility? • How to balance needs for productive workplace and need to accommodate and retain key employees?

Issues for Discussion Larger social policy question: How should the costs of family caregiving be distributed between and amongst: • Individuals • Families • Community • Employers • Government

Issues for Discussion • To what extent should employers allow employees to adjust their work patterns to help balance work and care? • i.e., hours of work, location, number of hours • When will accommodation of employees’ request reach the level of undue hardship?

Issues for Discussion • Is the accommodation of family responsibilities a human rights issue? • Should family responsibilities be extraordinary or rare in order to warrant a human rights response?

There was a time when a matter, such as work-life balance, would have been considered a private concern for families to work out. But when the economy, as well as families’ ability to live at prevailing community standards, depends on the supply of two workers per family, and when the fertility rate continues to drop, private risks tend to be defined as public crisis. Terrance Hunsley, “Informal Caregivers: Balancing Work and Life Responsibilities”

Law Reform to Address Family Responsibilities Discrimination Krista James Staff Lawyer BC Law Institute Kacey A. Krenn Associate Harris & Company LLP Human Rights ConferenceNovember 5, 2009

Law Reform to Address Family Responsibilities Discrimination