Family Status Protection for Parents

Update by Erin Brandt, Cofounder

The British Columbia Human Rights Code (the “Code”) protects employees who have competing work and family obligations from discrimination on the job. Put another way, the law prohibits employers from discriminating against their workers (including by firing them) because of their family status.

Background

In BC, an employee complaining to BC’s Human Rights Tribunal (the “Tribunal”) about adverse treatment at work based on their family status has to prove that their employer changed a term or condition of their employment resulting in a serious interference with a substantial parental or other family duty or obligation. This two part legal test, dubbed the “Campbell River test”, is a strict one and more stringent than the threshold for other grounds of discrimination.

In Suen v Envirocon Environmental Services (No. 2), 2017 BCHRT 226, the Tribunal suggested that the law in the area of family status discrimination may be changing. At the heart of Mr. Suen’s complaint was whether his decision to reject a temporary work transfer to Manitoba and stay in BC “in consideration of his wife and [four month old] baby” – a decision that led to his dismissal – was protected by the Code, such that his firing was discriminatory.

Decision

In a preliminary decision, the Tribunal questioned whether the Campbell River test is still “good law” in BC and suggested that family status complaints should be subject to the same standard that applies to all other discrimination complaints in BC. This means that a complainant should only have to prove that:

1. They have the protected characteristic of family status (i.e. they have a family);

2. They suffered an adverse impact regarding their employment; and

3. Their family status was a factor in the adverse impact.

In this case, the Tribunal provided interesting commentary on a father’s role in the family. It affirmed that a father shares the responsibility of parenting and to find otherwise would reinforce “stereotypical views of the respective roles of mothers and fathers in both the public and private spheres”. The Tribunal elaborated further:

1. These stereotypical views “are harmful to both men and women in entrenching expectations and patterns of behaviour that are directly contrary to the purposes of the Code”, and

2. The reinforcement of stereotypical views with respect to the assumption of childcare responsibilities “is not only harmful to women in their ability to participate free of impediment in social and economic life at the workplace, but also to men and their ability to participate in social and cultural life at home”.

Recognizing the contributions both parents make to the life and development of a child, the Tribunal rejected the idea that “fathers are ancillary to their children’s lives”. Rather, the Tribunal stressed that men should not be limited in their ability to assume childcare responsibilities and should benefit from the protection of the Code.

The employer appealed the Tribunal’s decision to the BC Supreme Court, and then to the BC Court of Appeal who quashed the Tribunal’s decision. The Court of Appeal concluded that:

1. The facts alleged by Mr. Suen established only that he was a parent.

2. While Mr. Suen’s desire to remain close to home to be with his child and to assist his wife in caring for the child outside of his normal weekday working hours and on weekends was “understandable and commendable”, he is no different than “the vast majority” of parents.

3. There are “many parents” who are required to be away from home for extended periods for work-related reasons who continue to meet their obligations to their children.

4. There was nothing in the facts to suggest that Mr. Suen’s child “would not be well cared for in his absence”.

The Court of Appeal has narrowed the scope of Mr. Suen’s human rights complaint. Now, Mr. Suen can only argue that that losing his job because he became a parent was discriminatory. He is not permitted to argue that the serious interference with a substantial parental obligation he suffered as a result of the employer’s temporary work transfer was discriminatory.

Key Take Away for Employers

The legal test for family status discrimination remains high. The fact that a person becomes a parent does not give them a right to a change in work schedule or work location to accommodate their new family responsibilities.

Key Take Away for Employees

The Tribunal’s decision in Suen included progressive commentary about a father’s role in the family and offered to protect all parents (mothers, fathers and non-birth parents) from suffering adverse impacts at work as a result of their shared parenting obligations. While the BC Court of Appeal attempted to close the door to broadening protection for BC parents seeking family status accommodation in BC, this decision signals that the Tribunal may again attempt to move BC towards a more sustainable approach to balancing work and family obligations for all parents.