British Columbians who find themselves with a serious conflict between their work requirements and family or parental responsibilities now have one less barrier in proving workplace discrimination.
A Court of Appeal decision Friday (April 21) clarified long-debated wording around what conditions need to be met for a person to file a legitimate human rights complaint if their employer refuses to accommodate their parental or caregiving responsibilities. This could include someone with young children or someone caring for an aging parent or dependant with disabilities, among other things.
In the past, decision-makers in such discrimination cases have usually required two things: that a term of a person’s employment had changed, and that that change had caused a serious interference with their parental or family duty.
These conditions were challenged in 2018, when a woman named Lisa Harvey filed a human rights complaint against her employer. Harvey and her husband both worked at a Gibraltar mine north of Williams Lake and, prior to having a baby, almost always worked the same 12-hour shift. Upon returning from parental leave, Harvey asked Gibraltar to change her or her husband’s shift so they could cover caring for their baby.
Harvey and Gibraltar went back and forth, but couldn’t agree on something that worked.
Although there had been no change in Harvey’s terms of employment, she argued Gibraltar’s refusal to accommodate her and her husband’s new roles as parents amounted to discrimination.
The B.C. Human Rights Tribunal agreed and allowed Harvey’s complaint to proceed to a hearing, but that decision was subsequently shot down by a chamber judge. The Human Rights Tribunal appealed the judge’s ruling, leading to Friday’s decision by the Court of Appeal.
In it, a panel of justices ruled in favor of the Human Rights Tribunal’s argument and agreed that an employer doesn’t need to change the terms of a worker’s employment in order for there to be the possibility of family status discrimination.
Human Rights Commissioner Kasari Govender called the decision “real progress” and emphasized its impact on gender equality.
“We know women still have the lion’s share of responsibility in a lot of families.”
Govender said she is concerned, however, by the court’s choice to include conditional wording around family status discrimination.
The decision reads: “…an applicant must establish that their family status includes a substantial parental or other duty or obligation, that they have suffered a serious adverse impact arising from a term or condition of employment, and that their family status was a factor in the adverse impact.”
The words “substantial” and “serious” add additional and vague hurdles for people to overcome if they want to file a complaint, Govender said.
“In my view, the family status discrimination right now is harder to prove for claimants than other grounds for discrimination, such as gender or race.”
Govender said she’s disapointed the court added the new wording without consulting the involved parties and her.
“It’s really hard to know how this will play out in the future.”