Human Rights Tribunal Dismisses Complaint that Work Shift Change was Family Status Discrimination
Many parents are familiar with the challenges of finding suitable childcare, and the further difficulty of balancing their childcare needs with their work schedules. The B.C. Human Rights Tribunal (the “Tribunal”) recently addressed this challenge in Ziegler v. Pacific Blue Cross (No. 2), 2020 BCHRT 125. The Tribunal dismissed an employee’s complaint that her employer discriminated against her based on family status when it changed her schedule such that she could no longer pick her son up from daycare on time.
The complainant worked for the employer in Burnaby. While she was at work, her one-year-old son attended daycare near her home in Langley. In January of 2017, the employer advised its employees that it was implementing a new schedule at the end of the month. While the complainant previously worked until 4:30pm, her new schedule meant that she would finish work at 5:00pm. The complainant advised her employer that she could not work this schedule and make it in time to pick her son up from daycare before it closed at 6:00pm. Her employer advised her that it could not accommodate employee shift preferences. However, the employer agreed to provide her with an additional four weeks to sort out her childcare arrangements before it implemented the new schedule. In this time, the employee found a new job and resigned. She brought a complaint alleging that her employer discriminated against her on the basis of family status under s. 13 of the Human Rights Code.
The Tribunal applied the test for family status discrimination established in Health Sciences Association of British Columbia v. Campbell River and North Island Transition Society, 2004 BCCA 260 (“Campbell River”), which requires a complainant to show:
- The employer imposed a change in a term or condition of employment, and
- The change resulted in a serious interference with a substantial parental or other family duty or obligation.
The Tribunal found that the shift change was a change in the complainant’s terms or conditions of employment. However, the Tribunal held that the change did not seriously interfere with a substantial parental duty or obligation and thus dismissed the complaint.
The Tribunal relied on the fact that the complainant failed to explore the availability of alternative day care options that would meet her needs. Instead, she opted to find another job. The Tribunal noted that the complainant did not consider in-home daycares in her area as an option because she preferred the quality of a large “corporate” daycare provider. She made this decision without checking the standards of care provided by the in-home centres. The complainant had argued that it was unfair for her employer to put her in the position where she had to alter the childcare arrangement she had in place. The Tribunal disagreed and stated that while many parents might react the same way, more was required in order to meet the test for family status discrimination.
This decision reaffirms the high standard for family status discrimination set out in Campbell River. An employee is unlikely to bring a successful discrimination claim based on schedule and childcare conflicts without first proving that they have diligently investigated alternative arrangements.
However, employers must keep in mind that access to childcare facilities has become more difficult since the COVID-19 pandemic began. Employees will likely have a harder time finding alternative arrangements. Further, recent Employment Standards Act amendments allow employees to take unpaid, job-protected leave related to COVID-19 if they are unable to work because they need to provide care to their child for reasons related to COVID-19, including a school or daycare closure.
For advice regarding employees who have raised family status as a potential concern in respect of a workplace policy or direction, please contact a member of Lawson Lundell's Labour, Employment, and Human Rights Group.
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