Expanded Legal Protection for Families

Update by Erin Brandt, Cofounder

Families struggling to balance work with childcare and eldercare obligations are getting more attention in the last few years. Recently, in British Columbia (Human Rights Tribunal) v Gibraltar Mines Ltd., 2023 BCCA 168, the BC Court of Appeal issued an important legal decision that provides greater protection to families needing accommodation at work.

Background

This case is about a woman who had a baby and requested a schedule change from her employer upon returning to work from maternity leave. She and her husband worked the same 12-hour shifts (with occasional opposite nights), and they were unable to find suitable childcare. Ms. Harvey and Gibraltar Mines Ltd. could not agree on a new work schedule that would allow Ms. Harvey and her husband to care for their baby. As a result, Ms. Harvey filed a human rights complaint with the BC Human Rights Tribunal (the “Tribunal”).

Decision

Gibraltar applied to dismiss Ms. Harvey’s human rights complaint in full at a preliminary stage. The Tribunal declined to dismiss the part of Ms. Harvey’s complaint that alleged discrimination on the basis of family status.

On judicial review, the BC Supreme Court disagreed with the Tribunal’s decision. Gibraltar successfully argued that family status discrimination can only be 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 other family duty or obligation of the employee (the “BCSC Decision”).

The Tribunal appealed the BCSC Decision to the BC Court of Appeal. The most significant part of the appeal is the Court of Appeal’s clarification that the BC Human Rights Code does not require a change in a term or condition of employment to trigger prima facie discrimination (the first part of the underlined section above). This means that discrimination can happen if an employer decides to change the terms of employment causing an adverse impact on an employee, OR if an employee’s parental or family circumstances change and the employer refuses to change a term of employment to accommodate the employee’s need, causing an adverse impact on the employee.

To summarize, the Court of Appeal clarified that prima facie family status discrimination is made out when a term or condition of employment results in a serious interference with a substantial parental or other family duty or obligation (note the absence of the words “change” and “imposed by an employer”).

The Court of Appeal provided additional comments that not every family obligation will trigger human rights protection. Rather, an employee must still prove that their family status includes a substantial parental or other duty or obligation, and the conflict between their work and family obligations must still be serious.

Takeaway for Employees

Before Ms. Harvey’s complaint, employees seeking accommodation at work due to family commitments could only do so in response to a change in a term or condition of employment imposed by their employer. Where an employee had a change in personal circumstances (such as having a baby), but no change in employment conditions, they were not legally entitled to accommodation.

This decision broadens human rights protection for all parents and caregivers (relating to both childcare and eldercare) and recognizes that the right to accommodation at work may arise following a change in an employee’s family circumstances (such as the arrival of a new baby or the decline of a parent’s health).

Takeaway for Employers

For many employers already offering flexible workplaces, this decision will have no impact. However, companies that have not been willing to accommodate “commonplace childcare difficulties” will need to re-evaluate their business practices to ensure compliance with the BC Human Rights Code.