Accommodating Diverse Families and Family Responsibilities

By Jo-Anne Pickel

Demographic shifts and changing family forms continue to challenge preconceptions of what constitutes a “family” and traditional roles and expectations related to care-giving within families. Just as social norms and expectations have had to adjust to these changes, so must human rights law. The Ontario Human Rights Commission’s Policy and Guidelines on Discrimination Because of Family Status released this past spring may provide an important tool for human rights advocates to nudge human rights law regarding family status discrimination forward especially as it relates to workplace policies and practices. However, human rights advocates will need to incorporate critical analysis that extends beyond the Policy as, in many respects, the latter is based on caselaw which has adopted a questionable framework of analysis for family discrimination cases.

A. Commission’s Policy and Guidelines

1. Range of Family Relationships Covered

The Ontario Human Rights Code provides protection against discrimination on the basis of “marital status” and “family status”. Marital status is defined in the Code as the status of “being married, single, widowed, divorced or separated and includes the status of living in a conjugal relationship with a person outside marriage” (s. 10(1)). “Family status” is defined more narrowly in the Code as “the status of being in a parent and child relationship.” (s. 10(1)) Together, the two grounds of “marital status” and “family status” combine to cover a range of family forms, but they do not cover the full range of relationships that most people would consider familial. Thus, the Code’s restrictive definition may have an adverse impact on groups whose familial relationships do not fit the traditional mould such as individuals identified by sexual orientation, gender identity, disability, creed, race and other race-related grounds. The Code’s restrictive definition may also have an adverse impact on women who continue to be responsible for a disproportionate amount of caregiving work that is performed in families and in society generally.

In its Policy on family status, the Commission suggests that the definition of family status may embrace a range of relationships where there are no blood or adoptive ties, but where there are relationships of care, responsibility, and commitment that resemble a parent/child relationship. This definition might then include a much broader range of caregiving relationships such as a person providing eldercare for her grandparent, a person who agrees to care for her sister’s children while she is experiencing difficult economic circumstances, or a person taking care of a younger sibling with a disability. This broader interpretation of the term may better accord with the range of familial relationships that should be protected under the Code.

2. Discrimination and the Duty to Accommodate

Discrimination based on family status can take many forms, some overt and some more subtle. The Commission’s Policy makes clear that employers, accommodation providers, and service providers have an obligation to design policies and standards that are inclusive of a range of family types. The Policy also clearly provides that the Code’s family status protections include protections against discrimination arising from a failure to accommodate family-related obligations.

But when does a family status need give rise to the duty to accommodate?

A line of caselaw arising from the employment context has held that the parameters of the concept of family status cannot be open-ended and cannot apply to “ordinary” family obligations. According to this caselaw, in order to trigger a duty to accommodate, there must be “a change in a term or condition of employment imposed by an employer [which] results in a serious interference with a substantial parental or other family duty or obligation of the employee.” (Health Sciences Association of British Columbia v. Campbell River and North Island Transition Society, [2004] B.C.J. No. 922 (C.A.).)

Unfortunately, the Commission’s Policy adopts this same reasoning, stating that a duty to accommodate will be triggered “where there is a significant conflict between an important caregiving responsibility and an institutional rule, requirement, standard or factor.” However, the Policy does note the importance of carrying out a contextual assessment of particular situations. For example:

(a) The assessment of the caregiving responsibility should be grounded in the practical, lived reality of caring for children, elders, and/or persons with disabilities. It should also take into account the range of family forms that exist in society.

(b) Individual caregiving needs must not be viewed as isolated, personal issues. Instead they must be viewed in the context of the disadvantages faced by caregivers, particularly those who suffer intersecting disadvantage as a result of being female, racialized, low-income, lone parents, gay/lesbian/bisexual and/or newcomers to Canada.

(c) In order to determine whether a rule or requirement “significantly” interferes with a caregiving responsibility, it is important to take into account whether adequate social supports and services are available to assist the individual with her or his caregiving needs.

The Policy notes that the same standard of undue hardship applies to family status discrimination as other forms of discrimination. However, as noted in the Policy, in most cases, accommodations for needs related to family status will not require significant monetary expenditures. Instead, such accommodations require greater flexibility of policies and procedures. Accommodations may also involve some administrative inconvenience, but inconvenience by itself is not a factor for assessing undue hardship.

B. Significance for Challenging Workplace Policies

Discrimination based on family status often arises in workplaces. Frequently, workplace policies, practices and culture do not take into account employees’ caregiving responsibilities. Most workplaces are still built around the assumption that employees are members of families composed of two heterosexual persons, one of whom provides all necessary caregiving for children, elders, and other family members.

Below are some examples of policies and circumstances that may give rise to discrimination based on family status:

(a) Absenteeism policies - rigid attendance management programs and absenteeism policies that do not accommodate the needs of persons with various types of caregiving responsibilities;

(b) Leaves of Absence - when employers provide paid or unpaid leaves for employees with needs related to disability, pregnancy, creed or other reasons but deny such leaves to employees with caregiving responsibilities;

(c) Work schedules and overtime - when an employer refuses to rearrange work and overtime schedules to accommodate employees with caregiving responsibilities;

(d) Travel requirements - when an employer requires an employee to travel or relocate for work without any accommodation for caregiving responsibilities; and

(e) Work-related entitlements - where discrepancies in the treatment of full and part-time employees in regards to certain entitlements (e.g. seniority accrual) has an adverse impact on employees who are forced to work part-time due to caregiving responsibilities.

C. Issues that Remain to Be Considered

The Commission’s Policy on family status assists in fleshing out the analysis of this form of discrimination and the different ways in which it may arise. However, several issues remain to be tested in future litigation:

(a) Should it be necessary for a complainant to demonstrate a significant conflict between an important caregiving responsibility and an institutional rule in order to trigger the duty to accommodate? This analytical approach has been questioned in some recent caselaw on the basis that it conflates the threshold requirement to establish prima facie discrimination and the second stage bona fide occupational requirement (BFOR) analysis. In other words, the significance of the conflict and the importance of the caregiving responsibilities should be considered as part of the duty to accommodate analysis not as a threshold issue to dismiss claims before the duty to accommodate is triggered.

(b) Should family status protection be limited to situations where a conflict arises because the employer has changed a term or condition of employment (as suggested in the line of caselaw referred to above)? This approach is too restrictive in light of the broad anti-discriminatory purposes of human rights law. As well, most changes that lead to conflicts between employment duties and family responsibilities arise from changes within the family (e.g. the birth of a child, illness of a family member, etc.). Therefore, a broader approach to family status discrimination must be taken, one that encompasses situations other than those where an employer has made changes to workplace rules and policies.

(c) The Commission’s Policy focuses largely on caregiving obligations within families. Can family obligations other than caregiving obligations give rise to discrimination based on family status?

(d) How far should definitions of family be extended? Should people be able to identify for themselves who constitutes “family” for the purposes of a workplace policy?

D. Conclusion

The issue of family status discrimination will only become more pressing as notions of family continue to evolve and as assumptions and practices with respect to family obligations continue to be challenged. Even though the Commission’s policies and guidelines are not binding on any tribunal or court, they do have persuasive force. The Commission’s Policy on family status and its associated report The Cost of Caring will be useful to human rights advocates in pressing for the continued development of the caselaw on this issue in the future. However, on some aspects of the issue, it will be necessary for advocates to incorporate other critical analyses in order to challenge the more restrictive aspects of the framework that continues to be employed to analyze family status discrimination.

For a copy of the Ontario Human Rights Commission’s Policy and Guidelines on Discrimination Because of Family Status, click here. For a copy of the Commission’s report The Cost of Caring, click here.