Employees throughout British Columbia grapple with competing obligations between work and family. What consideration is an employer required to provide to an employee’s familial obligations in order to avoid findings of discrimination on the basis of family status? Until recently, only an employer’s active change to employment conditions could justify a finding of discrimination. However, the Court of Appeal has recently updated the law. In British Columbia (Human Rights Tribunal) v. Gibraltar Mines Ltd., 2023 BCCA 168 (“Gibraltar Mines”), the Court broadened the family status test, clarifying that an employer’s failure or inability to accommodate an employee’s family status, may constitute discrimination even in the absence of having changed the conditions of employment.
BACKGROUND
Section 13(1) of British Columbia’s Human Rights Code, R.S.B.C. 1996 c. 210, prohibits discrimination in employment on a number of enumerated grounds, including family status. While the protection against family status discrimination protects a wide category of familial makeups and obligations, much of the case law focusses on workplace interference with substantial parental duties.
Prior to Gibraltar Mines, the law was mostly settled by the 2004 BC Court of Appeal decision of Health Sciences Association of BC v. Campbell River and North Island Transition Society (“Campbell River”). Campbell River implemented a restrictive test for discrimination on the basis of family status, finding that family status discrimination occurs where (1) there is a change in a term or condition of employment imposed by an employer, and (2) that change results in a serious interference with a substantial parental or other family duty or obligation of the employee. Notably, the Campbell River test established a relatively high bar to proving discrimination compared to the less restrictive test to proving prima facie discrimination on other protected grounds (i.e. by showing an employee’s membership to a protected group, adverse treatment, and a nexus between the ground and that adverse treatment).
Case law (including for example: Envirocon Environmental Services ULC v. Suen, 2019 BCCA 46) following Campbell River continued to explore the extent of employer-implemented changes that would meet the test for family status discrimination. That is until Lisa Harvey, a journeyman welder employed by Gibraltar Mines north of Williams Lake, British Columbia, claimed that it was her own change in circumstances and her employer’s refusal to accommodate same (i.e. her employer’s inaction rather than action) that constituted discrimination on the basis of family status.
Ms. Harvey and her spouse were both employed by Gibraltar Mines and each worked the same 12 hour shifts, albeit often on different nights. After Lisa gave birth to her first child and neared the end of her parental leave, she sought a workplace accommodation to change her and her husband’s schedules to facilitate childcare arrangements. The parties attempted to reach an agreeable accommodation without success, and Ms. Harvey filed a human rights complaint alleging, among other grounds, discrimination in employment on the basis of family status.
At the BC Human Rights Tribunal, the employer applied to have the complaint dismissed on the basis that it did not meet the Campbell River test, as it had not changed a term or condition of Ms. Harvey’s employment. The Tribunal disagreed with that interpretation and held in favour of Ms. Harvey. On judicial review at the BC Supreme Court, the Court concluded it was bound by the Campbell River precedent which required an employer-implemented change to find family status discrimination, and therefore sided with the employer.
THE COURT OF APPEAL DECISION
Finally, on further appeal to the BC Court of Appeal, the Court noted Campbell River’s qualifying language which merely stated that it was “the usual case” where the employer changes the terms or conditions of employment. However, the discrimination inquiry ultimately rests on the “impact of the employment term on the employee, not the intention of the employer” (at para 73). As such, both of an employer’s decision to change a term or its refusal to do so, may have equal impact on the employee, thereby causing a serious interference with a substantial parental obligation. Therefore, the Campbell River test, properly understood, does not preclude a scenario where an employer’s inaction and refusal to accommodate causes an interference with a parental obligation.
Further still, the Court noted that the Human Rights Code does not limit the protection of section 13(1) to circumstances arising only from a change in a term and condition of employment.
Accordingly, under the new Gibraltar Mines test, an employee must simply prove that they suffered an adverse impact arising from a term or condition of employment, and that term or condition amounts to a serious interference with a substantial parental or family obligation (at para 101).
The Court of Appeal sent the case back to the BC Supreme Court for consideration of the issues in light of the revised test.
TAKEAWAYS
- While the Campbell River test remains good and enforceable law, it no longer requires an employer-implemented change in order to constitute discrimination on the basis of family status. Rather, family status discrimination can arise from a change in the employee’s circumstances as well as an employer-initiated change.
- Employers must consider how an employee’s family status affects both new and existing terms and conditions of their employment, and thereby ensure that adequate accommodations are considered in order to comply with the Human Rights Code.
The new hearing of the underlying matter is to be determined. A further update will be provided when that decision gets released.