Arecent decision of the BC Human Rights Tribunal serves to illustrate the confusionfacing employers attempting to determine their accommodation obligations whenit comes to family status complaints.
Anemployee was terminated after he asked for time off to take his child to amedical appointment. He filed a human rights complaint alleging discriminationon the basis of his family status. The employer argued the termination was becauseof the complainant’s sub-standard job performance and that his family statuswas not a factor in the termination. The employer applied to have the complaintdismissed on the basis that there was no reasonable prospect that the complaintwould succeed.
Indisposing of the application, the Tribunal began by noting that family status,like the other enumerated grounds ofdiscrimination under the Code, is to be interpreted broadly. Family statusincludes both the “absolute status of being a family member…and therelative status of being in a particular family relationship”. Accordingto the Tribunal, the complaint fell within those parameters and, therefore, theTribunal had jurisdiction to hear the complaint. Notably, the decision did notrefer to the test for establishing a primafacie case of discrimination on the basis of family status as set out bythe BC Court of Appeal in Health SciencesAssociation of BC v. Campbell River and North Island Transition Society. Inthat case, the Court indicated that a primafaciecase of family status discrimination is made out when an employerchanges in a term or condition of employment which results in a seriousinterference with a substantial parental obligation.
TheTribunal then considered whether there was a reasonable prospect the complaintwould succeed. To succeed at hearing, the complainant would have to show, on abalance of probabilities, that his employer had treated him adversely and thatthere was at least a reasonable inference that the adverse treatment was due tohis family status. The Tribunal noted that the employer had never given the complainantfeedback that his performance was lacking. On this basis, it concluded therewas at least an inference that the complainant was terminated because he hadrequested time off for his child’s medical appointment. As a result, theTribunal declined to dismiss the complaint.
Importantly,there was no mention in the Tribunal’s decision of FamilyResponsibility Leave under the BC Employment Standards Act which requires employers to provide up tofive days’ unpaid leave per year to meet family responsibilities related to thecare, health or education of a child in the employee’s care or to the health ofa member of the employee’s immediate family.
Whilethis recent decision may signal a shift in the Tribunal’s reasoning withrespect to family status cases, we note that the decision in Campbell River has not been overturnedby the Supreme Court of Canada and remains good law in British Columbia. Federallyregulated employers should review a recent decision by the FederalCourt on accommodation of family status.
If you have any questions regarding the information in this article, please contact Lindsie Thomson.