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Law Reform to Address Family Responsibilities Discrimination

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Title: Law Reform to Address Family Responsibilities Discrimination


1
Law Reform to Address Family Responsibilities
Discrimination
  • Krista James
  • Staff Lawyer
  • BC Law Institute
  • Kacey A. Krenn
  • Associate
  • Harris Company LLP

Human Rights Conference November 5, 2009
2
Law Reform Family Responsibilities
Discrimination
  • Objectives
  • Review recent decisions applying a human rights
    analysis to family responsibilities accommodation
  • What is the appropriate forum for addressing
    family responsibilities in the workplace?

3
Law Reform Family Responsibilities
Discrimination
  • Agenda
  • Family Caregiving Law Reform Project
  • Family Responsibilities Discrimination
  • Scope of the family status ground
  • International approaches
  • Discussion What is the appropriate approach?

4
Statistics on Family Caregiving
  • Over 1 in 4 employed Canadians care for an
    elderly dependent
  • The majority of caregivers work the equivalent of
    2 full time jobs
  • Absenteeism due to caregiver strain costs
    Canadian employers over 1 billion dollars per year

Duxbury, Higgins and Shroeder, 2009
5
Family Caregiving Law Reform Project
  • Employment law
  • Pensions
  • Tax law
  • Health Policy
  • Human Rights
  • http//www.bcli.org/bclrg/projects/family-caregiv
    ing

6
Who are Family Caregivers?
  • Family caregivers provide care for
  • Adult children with disabilities
  • Aging parents
  • Cancer survivors
  • People with chronic illnesses
  • Addictions recovery

7
Social Policy Context
  • Aging population
  • Declining birth rate
  • Women in labour force in equal numbers
  • Smaller families
  • Shrinking labour force
  • De-institutionalization of aspects of health care

8
Law Reform Family Responsibilities
Discrimination
  • Outcome
  • People living longer lives of dependency
  • Fewer non-working family members to focus on
    caregiving
  • More working people balancing work and care
  • Growing sandwich generation

9
Employment Standards Act
  • Limited support for family care
  • Compassionate Care Leave 8 weeks unpaid leave
    for end-of-life care (s. 52.1)
  • Family Responsibility Leave 5 days unpaid leave
    (s. 52)
  • Employers may be required by Code to go beyond
    minimums

10
Family Responsibilities Discrimination
  • Family Status Discrimination
  • B. v. Ontario (Human Rights Commission), 2002
    S.C.C. No.66
  • Practices or attitudes that have the effect of
    limiting the conditions of employment of, or the
    employment opportunities available to, employees
    on the basis of a characteristic relating to
    their marriage (or non-marriage) or family (para.
    31)

11
Family Responsibilities Discrimination
  • Human Rights Approach
  • Campbell River case restrictive test
  • Whether a change in a term, or condition of
    employment, imposed by the employer results in
    serious interference with a substantial parental
    or other family duty

12
Family Responsibilities Discrimination
  • Problems with Human Rights approach
  • Very few cases on adult caregiving
    responsibilities
  • Meaning and scope of family status little upper
    level court guidance

13
Family Responsibilities Discrimination
  • Hoyt v. CNR, 2006 C.H.R.D. No. 33
  • Facts
  • Complainant required accommodation in pregnancy
    and parental obligations
  • Employer offered several forms of accommodation,
    but none properly addressed her limitations
  • Forced to take unpaid leave when could not secure
    child care on several weekend days

14
Family Responsibilities Discrimination
  • Hoyt v. CNR, 2006 C.H.R.D. No. 33
  • Tribunal employer failed to accommodate
  • Criticizes Campbell River decision
  • CHRT it is inappropriate to create a more
    restrictive definition for one prohibited ground
    of discrimination than for other prohibited
    grounds (para. 120)

15
Family Responsibilities Discrimination
  • Johnstone v. Canada (Attorney General), 2007 FC
    26
  • Facts
  • Complainant requested fixed shifts when returned
    from maternity leave, to accommodate childcare
    arrangements
  • Employers policy required that she accept
    part-time employment in return for fixed shifts

16
Family Responsibilities Discrimination
  • Johnstone v. Canada (Attorney General), 2007 FC
    26
  • Commission dismissed complaint
  • Federal Court allowed judicial review
  • Federal Court there is no justification for
    requiring a higher standard of proof for
    discrimination based on family status, than for
    other grounds

17
Family Responsibilities Discrimination
  • Falardeau v. Ferguson Moving Ltd., 2009 BCHRT
    272
  • Complainant was single father, terminated when
    refused to work overtime to be home with son.
  • No prima facie discrimination son not special
    needs, only had to balance ordinary parental
    obligations with job requirements

18
Family Responsibilities Discrimination
  • Falardeau v. Ferguson Moving Ltd., 2009 BCHRT
    272
  • No accommodation required overtime was regular
    part of job
  • Highlights distinction between special family
    obligations and regular responsibilities

19
Family Responsibilities Discrimination
  • Rennie v. Peaches and Cream Skin Care Ltd., 2006
    AB HRC
  • Complainant told she had to work one evening per
    week on return from maternity leave
  • Terminated when refused to work evenings because
    could not get child care
  • Held that accommodation in small workplace would
    cause undue hardship complaint dismissed

20
Family Responsibilities Discrimination
  • Criticisms of Campbell River
  • Change must occur in the workplace
  • Collapsing of prima facie discrimination and
    undue hardship aspects of analysis
  • Excludes commonplace family responsibilities
  • Human rights violation requires caregiving
    circumstances to be unique or extraordinary

21
Family Responsibilities Discrimination
  • Defences of Campbell River
  • Floodgates many employees struggle to balance
    work vs. family responsibilities
  • Need to draw a line for prima facie
    discrimination based on a family status
  • If anyone can show prima facie discrimination,
    what would constitute undue hardship?

22
Family Responsibilities Discrimination
  • SCC on Family Status
  • Family status captures both absolute and
    relative discrimination
  • It is not necessary to situate a person within a
    larger group to make out discrimination
  • B. v. Ontario

23
Family Responsibilities Discrimination
  • Grounds vs. Groups
  • Discrimination in not only about groups. It is
    also about individuals who are arbitrarily
    disadvantaged for reasons having largely to do
    with attributed stereotypes, regardless of their
    actual merit Whether or not a disadvantaged
    group can be fashioned out of the facts of any
    particular case is largely irrelevant. The Code
    stipulates grounds in s. 5(1), not groups. The
    question is whether an individual has been
    discriminated against on the basis of a
    prohibited ground, not whether he or she
    necessarily fits into a group requiring redress.

24
Family Responsibilities Discrimination
  • Ontario HRC Policy on Family Status (2007)
  • Accommodating caregiving needs in workplace is
    matter of flexibility
  • Flexible approach will help attract and retain
    good employees
  • Balance conflict between caregiving
    responsibility and employers requirements

25
Family Responsibilities Discrimination
  • Ontario HRC Policy on Family Status (2007)
  • Administrative inconvenience not a factor in
    assessing undue hardship
  • All employees will have to juggle demands of work
    and caregiving at some point

26
Family Responsibilities Discrimination
  • Ontario HRC Policy on Family Status (2007)
  • Offer flexibility
  • Leaves of absence
  • Hours of work
  • Reduced workweek
  • Remote work
  • Is there a negative attitude in workplace towards
    caregiving responsibilities?

27
International Approaches
  • UK Flexible Working regulation
  • Requires employers to consider requests for
    variations in terms of employment needed to
    manage adult and child care responsibilities
  • Lists potential grounds for refusal due to impact
    on business
  • Employer discretion no right of appeal if timely
    response as per regulation

28
International Approaches
  • New Zealand Human Rights Act
  • Includes family status as a ground
  • Defines family status to include having the
    responsibility to care for children or other
    dependents

29
International Approaches
  • New South Wales, Anti-Discrimination Act
  • Prohibits discrimination on the ground of a
    persons responsibilities as carer
  • Requiring a person to comply with a condition of
    employment with which a substantially higher
    proportion of non-caregivers are able to comply
    is a form of discrimination

30
International Approaches
  • Equal Opportunities Act of Victoria
  • Employer must accommodate employees
    responsibilities as parent or carer
  • Act indicates that accommodation includes changes
    in hours of work and location of work, and
    rescheduling workplace meetings to accommodate
    the employee schedule

31
International Approaches
  • Australian Capital Territory, Sex-discrimination
    Act
  • Discrimination on the ground of family
    responsibilities
  • Less favorable treatment of employer may be the
    result of the family responsibilities of the
    employee

32
Issues for Discussion
  • Comparison of Employment vs. Human Rights
  • Right to request vs. right to
  • Both approaches have strengths and weaknesses

33
Comparison of Employment vs. Human Rights
  • Human rights approach
  • Complaint model cost, timeliness, and
    time-consuming
  • Must frame issue as an act of discrimination
  • Applies to all employees
  • Problems with family status ground
  • Restrictive Campbell River test
  • Quasi-constitutional nature

34
Comparison of Employment vs. Human Rights
  • Employment law approach
  • Excluded employees
  • No need to prove discrimination
  • Clarifies that accommodation of caregiving is an
    employment issue
  • Grants employer discretion

35
Issues for Discussion
  • Employers Perspective
  • In defence of Campbell River and the serious
    interference test
  • What constitutes undue hardship in responding to
    requests for workplace flexibility?
  • How to balance needs for productive workplace and
    need to accommodate and retain key employees?

36
Issues for Discussion
  • Larger social policy question
  • How should the costs of family caregiving be
    distributed between and amongst
  • Individuals
  • Families
  • Community
  • Employers
  • Government

37
Issues for Discussion
  • To what extent should employers allow employees
    to adjust their work patterns to help balance
    work and care?
  • i.e., hours of work, location, number of hours
  • When will accommodation of employees request
    reach the level of undue hardship?

38
Issues for Discussion
  • Is the accommodation of family responsibilities a
    human rights issue?
  • Should family responsibilities be extraordinary
    or rare in order to warrant a human rights
    response?

39
  • There was a time when a matter, such as
    work-life balance, would have been considered a
    private concern for families to work out. But
    when the economy, as well as families ability to
    live at prevailing community standards, depends
    on the supply of two workers per family, and when
    the fertility rate continues to drop, private
    risks tend to be defined as public crisis.
  • Terrance Hunsley, Informal Caregivers
    Balancing Work and Life Responsibilities

40
Law Reform to Address Family Responsibilities
Discrimination
  • Krista James
  • Staff Lawyer
  • BC Law Institute
  • Kacey A. Krenn
  • Associate
  • Harris Company LLP

Human Rights Conference November 5, 2009
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