What is discrimination on the grounds of family status?Team
Many people struggle to manage the twin obligations of work and family, particularly when taking care of their children or elderly parent. Carrying out these two major responsibilities has become very difficult, especially due to the lack of social support for families, such as adequate childcare, elder care, and disability support.
Under the Ontario Human Rights Code, people in a parent-child relationship have a right to equal treatment in their workplace. This means that employers cannot discriminate in hiring, promoting, training, providing benefits, affecting workplace conditions, or terminating the employee because they are caring for a child or parent.
Decisions in relation to your employees should never be affected by stereotypes about caregivers, such as that person who provides care for either their child or parent may be less competent, lack ambition or are not committed to their job.
As with other Code grounds, employers have a duty to accommodate needs related to family status. In situations where the structure, policies, or procedures of the workplace exclude or disadvantage people who are caring for a family member, employers have an obligation to make arrangements to accommodate the employee.
Examples of such accommodations are:
- providing the employee with flexible hours
- allowing the employee to take a leave of absence to take care of his family member, be this their child or parents
- providing access to alternative work arrangements
By accommodating the employee, the employers promote an inclusive workplace which is beneficial for both the employee and employer.
Section 10(1) of the Human Rights Code defines family status as the following:
“family status” means the status of being in a parent and child relationship;
This applies not only to the fact of being a parent or a child, but also to the caregiving role between parents and children, and between adult children and their aging parents. It can also include close bonds between non-biological parents and children with similar relationships of care, responsibility and commitment, such as stepchildren, adoption, or an extended family member (uncle, aunt, grandparent) who has formed an especially close parenting relationship with a child.
When does an employer have to accommodate an employee’s family obligations? There are several tests put in place to determine if an employer is required to accommodate an employee based on their family status. The Federal Court of Appeal, in Canada (Attorney General) v. Johnstone, 2014 FCA 110, outlined the test as follows:
‘(i) that a child is under his or her care and supervision;
(ii) that the childcare obligation at issue engages the individual’s legal responsibility for that child, as opposed to a personal choice;
(iii) that he or she has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, that no such alternative solution is reasonably accessible, and
(iv) that the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation.”
- The first factor requires the employee to demonstrate that a child is actually under their care and supervision. In situations where the employee cares for their elderly parent, they will have to demonstrate the care they provide to their parent.
- The second factor requires demonstrating that the employee is legally required to care for that individual, i.e. that it is not a personal choice. In situations where you care for your child, you can demonstrate that they have not reached the age to care for themselves. When the care is for a parent, it must be demonstrated that they are unable to care for themselves while you are performing your duties at work.
- The third factor requires the employee to demonstrate that they have made efforts to find an alternative solution and no other solution is either accessible or reasonable.
- The final factor requires the employee to demonstrate that rules in the workplace interfere with their childcare/caregiving obligations.
Keep in mind that there are several types of discrimination based on family status such as:
Negative Attitudes, Stereotypes, and Bias: In some circumstances, discrimination may be intentional, where either an individual or organization treats the individual differently due to their family status, this can occur due to stereotypes that unfortunately exist.
Subtle Discrimination: Discrimination isn’t always straightforward, an example of subtle discrimination is when a woman comes back from maternity leave, there is a job opening for a higher position which she is qualified for, so she applies, only to be discouraged by her employer as it is insinuated that this job requires someone who is truly committed and able to work overtime.
Harassment: Every employee has the right to freedom from harassment in the workplace by the employer, or by another employee. An example of harassment at the workplace due to family status could be when a woman is pregnant, and her manager makes a negative comment as to how pregnant women are less efficient.
Juggling a career and caring for your family is indeed a difficult task, but this should never be the cause of being discriminated against. If you are currently caring for your child or elderly parent speak to your employer to see how they can accommodate you, in the event that your employer is unwilling to accommodate or has discriminated against you based on your family status it is important to know the options you have by consulting with and employment and human rights lawyer who will have your best interest.
Whether you are an employer or an employee needing assistance with addressing or preventing discrimination in the workplace due to your family status our team of experienced employment and human rights lawyers at Achkar Law can help. Contact us by phone toll-free at +1 (800) 771-7882 or email us at [email protected] and we will be happy to assist.