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Failure to Accommodate Parental Responsibilities Found to Breach the Canadian Human Rights Act

On September 29, 2010 the Canadian Human Rights Tribunal rendered three simultaneous decisions involving complaints of discrimination on the basis of family status (Richards and Canadian Human Rights Commission v. Canadian National Railway; Seeley and Canadian Human Rights Commission v. Canadian National Railway; Whyte and Canadian Human Rights Commission v. Canadian National Railway).  Three female employees of Canadian National Railway (CN) were terminated when they refused a transfer because it would be too burdensome for their families.  The Tribunal held in each case that the complainants were discriminated against on the basis of family status and no attempt had been made by CN to accommodate their needs.  Each complainant was reinstated to her position with back pay, and CN was ordered to pay a total of $105,000 in damages.

The circumstances surrounding these complaints arose in February 2005 when CN experienced a shortage of employees at its Vancouver terminal.  CN recalled 47 employees on lay-off status, including the three complainants.  The collective agreement provided that certain employees could be required to cover work at another terminal in the western region, barring any “satisfactory reason” justifying failure to report.  The three complainants, each of whose home terminal was near Jasper, Alberta, were required to report to the Vancouver terminal.

Each of the three complainants contacted CN and asked to be excused from the transfers on a compassionate basis.  Two of the complainants were single mothers with primary custody of their young children and were restricted from moving their children away from their fathers.  The third complainant was a mother of two young children whose husband was  also a CN employee at the Jasper terminal.  The husband’s unpredictable work schedule could require his absence at a moment’s notice, so there were no viable childcare alternatives available if the wife was required to report to Vancouver.  CN granted an extension of time to report to Vancouver, but each employee was terminated when they failed to do so.

Arbitration

In 2006 the Union filed a grievance challenging the terminations and arguing that CN should have granted a compassionate leave of absence to the complainants.  Arbitrator Michel Picher dismissed the grievances and determined that the grievors bore the onus “to ensure that familial obligations did not interfere with the basic obligations of the employment contract.”

Human Rights Adjudication

Following the arbitration, complaints were filed with the Canadian Human Rights Commission alleging discrimination on the basis of family status contrary to the Canadian Human Rights Act (CHRA).  Ultimately, in each case the Tribunal held that the complainants had established prima facie discrimination contrary to the CHRA, and CN was unable to justify said discrimination on the basis of a Bona Fide Occupational Requirement (BFOR) analysis.

Prima Facie Discrimination Found

Adjudicator Michel Doucet endorsed the “broad approach towards the scope of family status” adopted by the Tribunal in Hoyt v. Canadian National Railway, [2006] C.H.R.D. No. 33 and found that: “The evidence demonstrates that the Complainant[s] [were] parent[s] and that this status included the duties and obligations generally incurred by parents. As a consequence of those duties and obligations, the Complainant[s], because of CN’s rules and practices, [were] unable to participate equally and fully in employment with CN.”

In following Hoyt, the Tribunal opted not to follow the British Columbia Court of Appeal’s more restrictive approach in Health Sciences Association of British Columbia v. Campbell River and North Island Transition Society, [2004] B.C.J. No. 922 (QL) where the Court held that prima facie discrimination based on family status required more than mere conflict between work requirements and regular parental obligations.  The Court in Campbell River held that “a prima facie case of discrimination is made out when a change in a term or condition of employment imposed by an employer results in a serious interference with a substantial parental or family duty or obligation of the employee.”

Doucet criticized the Court’s finding in Campbell River on the basis that the legal reasoning in that case created a different test for discrimination based on family status than other grounds of discrimination and effectively created a hierarchy of rights where family status was deemed less important and therefore less “worthy” of protecting.

No Bona Fide Occupational Requirement – Failure to Accommodate Parental Responsibilities

CN argued that the transfer policy was a bona fide occupational requirement.  Using the three-part test set out by the Supreme Court of Canada in Public Service Labour Relations Commission v. BCGSEU, [1999] S.C.J. No. 46 (QL) (Meiorin), CN was able to demonstrate that the transfer policy was adopted for a purpose rationally connected to the job, and the transfer policy was adopted in an honest and good faith belief that it was necessary to fulfill that purpose.  CN was not, however, able to convince the Tribunal that it was impossible to accommodate affected employees without imposing undue hardship on the employer.

The Tribunal rejected CN’s argument that the four months’ notice provided to each of the complainants to report to Vancouver constituted reasonable accommodation.  Doucet held that there was no evidence that the extension was a meaningful response to the complainants’ request.  The Tribunal further held that CN failed to meet the procedural obligations of the duty to accommodate given that it had neglected to assess the complainants’ individual situations or investigate any alternate forms of accommodation, which was itself a violation of the complainants’ human rights.

CN unsuccessfully argued that granting a leave of absence to the complainants would amount to undue hardship because it would be tantamount to granting “super seniority” based on the sole fact that the complainants were parents.  Since the vast majority of its workforce were parents, CN argued that accommodating the complainants because they had parental responsibilities would open the floodgates to accommodation requests from so many employees that this would amount to undue hardship.  The Tribunal rejected this reasoning, stating that it would essentially mean that any workplace with a large number of persons falling into one of the protected groups under the CHRA would automatically be precluded from the application of the law.  Another factor weighing against CN was that it had offered no evidence that it was overwhelmed by requests for accommodation from persons similarly-situated.

Remedies

The complainants were each reinstated with no loss of seniority and were awarded lost wages and benefits, less income earned, from the date that they would have been recalled to work in the Jasper, Alberta area to the date of the decision.  Each complainant was also awarded damages totaling $15,000 for pain and suffering as well as $20,000 representing the maximum allowable amount for compensation for CN having recklessly engaged in discrimination.  CN was also ordered to work with the Canadian Human Rights Commission to conduct human rights training and ensure that appropriate policies, practices, and procedures were in place to prevent similar discriminatory policies and practices in the future.

Significance

This decision sends a clear message that all forms of discrimination based on grounds enumerated in human rights legislation are equally prohibited.  It is no less a violation of human rights principles to discriminate against an employee with parental obligations than it is to discriminate against an employee based on race, creed, or disability.  Based on   these   recent   decisions,   employers    would    be   well  served  to  give   carefully consideration to accommodation requests based on parental responsibilities.   While not any and all parental responsibilities faced by an employee will necessarily require the employer to provide accommodation, this trend in the case law suggests that employers will be facing more of these accommodation requests in the future and should developing policies to address these issues in order to meet their statutory obligations.

Please Note: This blog has been prepared as an informational service for our clients and other interested parties.  It is not intended to constitute legal advice, a complete statement of the law or opinion on any subject.  Although we endeavour to ensure the accuracy of the content, no one should act upon the information provided without a thorough examination of the law after the facts of a specific situation are fully considered.