Labour Law and Discrimination on the Basis of Marital and Family Status
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Labour Law and Discrimination on the Basis of Marital and Family
Status
Michael Mac Neil
Department of Law, Carleton University
Originally prepared for
Labour Law Conference
The Charter and Human Rights at Work: 25 Years Later
University of Western Ontario
October 27, 20071. Introduction Karl Klare argues that “the social and political world classically imagined by labour law is disappearing, gradually in some places and quite abruptly in others.” 1 Nowhere is this observation more apt than in the relationship between family and work. The legal and policy framework within which we seek to resolve issues relating to family and marital status, as they relate to the workplace, must be sensitive to the extensive transformations that have taken place in family structures, the significant increases in participation of family members, especially women, in the workforce, the impact of immigration, and the emergence of a highly competitive global economy. No longer do we think of work as the domain primarily of male breadwinners, relieved of household labour to be able to devote their time and energy as ideal workers, primarily responsible for theeconomic security of the family unit. 2 In Canada, as in many other countries, there have been notable increases in labour market participation by women. This labour market transformation can be seen both as a consequence of the advancement of feminist claims advocating greater equality for women, as well as an inevitable consequence of the changing dynamics of capitalism and the diversification of family structures. Many jobs do not pay sufficiently well to ensure that a single wage earner can provide for the economic security of his or her family. Many women, as a result, even in the absence of expectations of satisfying, well-remunerated work, will seek paid employment, often creating conflict with their ongoing, usually unpaid, disproportionate share of the work in caring for children and elderly family members, and maintaining the operation of the household. The social structure of families is also being revolutionized, with the traditional “married heterosexual couple with children” paradigm being supplemented by a wide range of family dynamics, including increases in the number of single--parent families, high divorce rates, blended families, non-married cohabitants, and same-sex marriages. These diverse family forms raise new and sometimes challenging issues for labour and human rights law, again demonstrating the aptness of Klare’s observation. These social and economic changes make it particularly appropriate that we consider how the prohibition of discrimination on the basis of marital and family status is having an impact on work and labour law. This chapter will provide a short overview of some of the issues currently confronting us with respect to work-life and work-family balance, look at some initiatives from an international and comparative perspective, consider the Canadian legal framework within which discrimination on the basis of family and marital status is prohibited and look at how this legal framework has affected a variety of workplace practices. The chapter notes the impact of the Charter and anti-discrimination legislation on such areas as discrimination motivated either by stereotypical assumptions or individualized antipathy to a person’s marital or family status or relationship to a particular person, access to benefits, and 1 Karl Klare, “The Horizons of Tranformative Labour and Employment Law” in Joanne Conaghan, Richard Michael Fischl and Karl Klare, eds., Labour Law in an Era of Globalization: Transformative Practices and Possibilities (Oxford: Oxford University Press, 2002) 3 at 4. 2 Joan Williams, Unbending Gender: Why Family and Work Conflict and What to do About it (New York: Oxford University Press, 2000), describing the cult of domesticity and employer expectations for “ideal” workers.
anti-nepotism policies. A key focus of the chapter is whether employers are legally required to accommodate family responsibilities of employees. I argue that a robust interpretation of ‘family status’ in human rights legislation and collective agreements is likely to provide a powerful tool, leading to more balanced family-work arrangements 2. Work, Family and Balance In a 2005 Discussion Paper, the Ontario Human Rights Commission noted that issues relating to family status are often not conceptualized as human rights issues. 3 It would be equally fair to say that such issues are often not conceptualized as labour law issues either. 4 Yet, there is a growing concern about work-life balance, to a great extent engendered by the fact that it is rare that family members will be able to neatly compartmentalize workplace and family obligations when all of the parents are employed, to a greater or lesser extent, in the paid labour force. 5 A study by Statistics Canada shows that workers in 2005 spent, on average, 45 minutes less per day with their families, (or 195 hours less per year), than they did twenty years earlier, largely attributable to longer working hours. 6 The intensification of work for many, and demands of employers for greater flexibility in scheduling and organizing work in order to compete and be productive in a highly globalized economy, both contribute to potential work-life and work-family conflicts. There is considerable evidence of the increased participation of women in the paid labour force. The number of women between the ages of 15 and 64 participating in the paid labour force in Canada rose from 57.2% in 1980 to 73.0% in 2003. 7 Moreover, more than 70% of mothers with dependent children were in the paid workforce, an increase from 53.5% in 1981. These changes in the labour market may not have yet de-centred the traditional views of the ideal worker as one who is available to work forty hours per week or longer with little or no time off work for child bearing or rearing. 8 Yet, with more and more children in households where the only or both parents are employed, the ability of parents to fulfill their responsibilities to their children and their employers should be a dominant concern of parents, employers, and governments. 3 Ontario Human Rights Commission, Human Rights & the Family in Ontario: Discussion Paper (2005) at 3, online: http://www.ohrc.on.ca/en/resources/discussion_consultation/FamilyStatus1/pdf. 4 There is some emerging literature that does confront the problem. See e.g. Joanne Conaghan and Kerry Rittich, eds., Labour Law, Work, and Family: Critical and Comparative Perspectives (Oxford: Oxford University Press, 2005). 5 A recent analysis notes that families with a female lone parent comprised about 13% of Canadian families with a child under the age of six in 2005, with 80% of female lone parents in the labour market. 70% of married women with a child under the age of six were in the labour market, as were 80% of married women with children between the age of six and seventeen. Jacqueline Luffman, “The Core-age Labour Force” (2006) 7:9 Perspectives on Labour and Income, online: http://www.statcan.ca/english/freepub/75- 001-XIE/10906/art-1.htm. 6 Martin Turcotte, “Time spent with family during a typical workday, 1986 to 2005” Canadian Social Trends (Statistics Canada, Catalogue No. 11-008, February 2007) online: http://www.statcan.ca/english/freepub/11-008-XIE/2006007/pdf/11-008-XIE20060079574.pdf. 7 OECD, Babies and Bosses: Reconciling Work and Family Life, vol. 4 (2005) at 59. 8 Joan Williams, Unbending Gender: Why Family and Work Conflict and What to do About it (New York: Oxford University Press, 2000) at 1 [Unbending Gender].
In September 2007, Statistics Canada released an analysis of Canadian family structures drawing on the 2006 Census. 9 That analysis shows, among other things, that for the first time, less than 50% of Canadians over the age of 15 are legally married. This compares with 61.4% twenty years earlier. This is attributable, in part, to the increasing social acceptance of unmarried couples cohabiting, the numbers of which are rapidly growing. 10 At the same time, the number of lone parent families increased 7.8 % in the past five years, so that at least 13% of all families with children are headed by a lone parent. Another significant change noted in the census is the growth in same-sex couples, which have increased by 32.6% over the past five years. This too can be partly attributed to changing social mores as well as changes in the legal framework prohibiting discrimination on the basis of sexual orientation. Furthermore, family profiles are affected by declining birthrates and the postponement of childbearing. 11 Surveys carried out by Linda Duxbury and Chris Higgins demonstrate that stress arising from work-family conflict is something we should be concerned about. 12 In their work, they describe four types of work-life conflict: role overload, where people have too much work to do; work to family interference; family to work interference, and caregiver strain. The potential for role overload and family-work interference is being exacerbated as an increasing number of working people are faced with the dual burdens of child care and caring for elderly parents. The Duxbury-Higgins surveys have shown that from the perspectives of workers, these conflicts are getting worse, leading to greater stress, a negative impact on physical and mental health, and less commitment to employment. This in turn may be having undesirable consequences for employment productivity, affecting recruiting, retention, and ultimately affecting the ability of the institution to achieve its goals, whether financial or otherwise. One other significant finding in these surveys is that the work/family conflicts appear to have a greater effect on women. Their increased participation in the paid labour market has not necessarily led to a corresponding transformation in the sharing of family responsibilities, especially relating to child care, house work and elder care. These changes in labour markets, family structures, and increasing concern about work-life balance raise a wide variety of questions and concerns. Female labour force participation 9 Statistics Canada, Family portrait: Continuity and change in Canadian families and households in 2006: Findings by Anne Milan, Mireille Vézina and Carrie Wells (Demography Division, 4 Sept. 2007), online: http://www12.statcan.ca/english/census06/analysis/famhouse/index.cfm. 10 Common-law couple families have increased by 18.9 percent since 2001, while married-couple families increased only 3.5%. More than 10 percent of Canadians over the age of fifteen live in a common law relationship, with those in their late twenties having the highest percentage, at 22.6%. 11 Statistics Canada data shows that in 2004, women under the age of 24 comprised 20.6% of all mothers, compared to 40.7 % in 1979. Births to women over the age of 35 accounted for 17.2 % of the total in 2004, compared to 4.6% twenty five years earlier. Statistics Canada, The Daily (31 July 2006), online: http://www.statcan.ca/Daily/English/060731/d060731b.htm. 12 Linda Duxbury and Chris Higgins, Work-Life Balance in the New Millennium: Where are We? Where do We Need to Go? Canadian Policy Research Networks Discussion Paper No. W/12 (2001), online: http://www.cprn.org/doc.cfm?doc=52&l=en Linda Duxbury and Chris Higgins, Work-Life Conflict in Canada in the New Millennium: A Status Report (Health Canada, 2003.), online: http://www.phac- aspc.gc.ca/publicat/work-travail/pdf/rprt_2_e.pdf. Linda Duxbury, Chris Higgins and Sean Lyons, Reducing Work-Life Conflict: What Works? What Doesn’t? (Health Canada, 2007), online: http://www.hc- sc.gc.ca/ewh-semt/alt_formats/hecs-sesc/pdf/pubs/occup-travail/balancing-equilibre/full_report- rapport_complet-eng.pdf.
leads to questions about whether we are truly achieving gender equality. Participation rates
do not tell the whole story, and one must closely examine the ways in which women are
participating; there is good reason, for instance, to think that women who typically carry a
disproportionate share of childcare responsibilities within families are much more likely to
work part-time 13 and are less likely to take up managerial positions. 14 As a result, employers
have been forced to confront the under-representation of women in particular segments of the
labour market. The extent to which equality is being achieved can only be determined by a
close examination of the ghettoization of work, pay equity, glass ceilings and the conditions
in work environments that have often treated women as unwelcome or subjected them to
forms of sexual harassment.
There have been many calls for the creation of family-friendly workplaces 15, but the extent to
which governments, employers and unions have responded to the call has been sporadic at
best. Initiatives in specific workplaces, from creating daycare centres, to reduced work-time
arrangements, to flexible leave arrangements, can help address these problems. 16 Yet for
many workers, these options are not available, or, if available, workers feel constrained from
taking advantage of them because of the consequences it may have for their careers. Many
labour market and social policies have been adjusted to encourage increasing participation of
women in the workplace, including tighter restrictions on access to welfare, the provision of
partially funded maternity and parental leave, the implementation of pay equity and
employment equity laws and the adjustment of tax policies, yet there are many problems to
be addressed.
More work must be done to understand the potential of voluntary programs and the impact of
government initiatives. This chapter, though, has a more limited scope. It seeks to
understand how both anti-discrimination legislation and the Charter of Rights and Freedoms
is being, or may be, leveraged, especially in the unionized workplaces, to continue to
challenge barriers to full participation that may arise from family and marital status.
3. International and Comparative Approaches
13
In 2006, 26% of women in the paid workforce worked less than 30 hours per week, compared to 11% of
men. Women account for about 70% of all part-time workers. Statistics Canada, Women in Canada:
Work Chapter Updates 2006, (Ottawa: 2007) at 8, online: http://dsp-
psd.pwgsc.gc.ca/Collection/Statcan/89F0133X/89F0133XIE2006000.pdf.
14
In 2006, women filled 36% of managerial positions, an increase from 30% in 1987. “Among managers,
however, women tend to be better represented among lower-level managers, as opposed to those at more
senior levels. In 2006, women made up only 26% of senior managers, compared with 37% of managers at
other levels.” Statistics Canada, ibid. at 9.
15
See e.g., the 1999 federal Speech from the Throne, which noted the government’s commitment to “make
workplace policies… of federally regulated employees more family friendly.” Quoted in Charles Philippe
Rochon, ed., Work and Family Provisions in Canadian Collective Agreements (Human Resources
Development Canada Labour Program, 2001), at xv. Online:
http://www.hrsdc.gc.ca/en/lp/spila/wlb/pdf/workfamily_en.pdf.
16
For a good overview of a wide variety of such initiatives, see the Canadian government’s website,
Labour Program, “Workplace Programs, Policies, and Practices” online:
http://www.hrsdc.gc.ca/en/lp/spila/wlb/11programs_policies_practices.shtml.Work-family balance has been recognized as an issue in international institutions. In 1981,
the International Labour Organization adopted the Workers With Family Responsibilities
Convention, 17 by which ratifying countries agree to “make it an aim of national policy to
enable persons with family responsibilities who are engaged or wish to engage in
employment to exercise their right to do so without being subject to discrimination and, to the
extent possible, without conflict between their employment and family responsibilities.”
Although Canada has not adopted this Convention, it is worth noting that the Convention
describes the obligations it imposes as ones designed to prevent discrimination and encourage
equal opportunity for men and women. It also makes it clear that the obligation applies not
only to terms and conditions of employment, but also to the provision of social security and
community services, such as child care. In the accompanying Recommendation, the terms
and conditions of employment highlighted include hours of work and overtime, flexibility in
work schedules, rest periods and holidays, shift-work arrangements, place of work and
transfers, parental leaves, and absences to care for ill dependents. 18
The OECD has emphasized the importance of labour market and social policies that are
family friendly. 19 States and employers should be motivated, the OECD argues, to introduce
such polices out of a concern for promoting greater labour force participation by mothers, to
ensure they maintain their labour market skills, to ensure economic security for families, to
make progress on gender equity and to ensure an adequate labour supply in the face of a
shrinking workforce. The report notes the considerable imbalance in the percentage of
women and men engaged in part-time employment, and suggest that this is correlated with
the imbalance in unpaid work and child-care carried on inside households. The report also
emphasizes the impact of work-life balance on decreasing fertility rates, with major
consequences for labour markets, as well as the importance that pay differentials between
men and women may contribute to the decisions about who will bear primary responsibility
in the household for childcare. In terms of influencing the access of working mothers to the
labour force, not only must one focus on voluntarily adopted employer policies and labour
standards, one must be especially sensitive to social policies such as the provision of daycare
and tax-benefit policies that facilitate the balancing of family and work responsibilities.
Clare McGlynn provides an overview of the European Union’s approach to reconciling
family and work. 20 The driving force in European reconciliation policies, according to
McGlynn, is the promotion of greater female participation in the labour market as a response
to changing demographics. Although the language of European Union directives stipulate a
desire to promote equal parenting and equal sharing of family work, the directives do not go
very far in achieving such aims. For example, the Parental Leave Directive, purporting to
grant leave to mothers and fathers, is not likely to lead to fathers taking such leaves in the
absence of the provision of pay during the leave. Hugh Collins argues, however, that
European initiatives that encourage greater flexibility in the determination of the content of
job packages may give employees greater bargaining strength to insist on packages that better
17
Convention 156, online: http://www.ilo.org/ilolex/cgi-lex/convde.pl?C156. As of September, 2007, it has
been ratified by 38 countries, Canada not among them.
18
ILO Recommendation 165, Workers with Family Responsibilities Recommendation, 1981, at paras. 21-
23, online: http://www.ilo.org/ilolex/cgi-lex/convde.pl?R165.
19
OECD, OECD Employment Outlook 2001(Paris, 2001).
20
“Work, Family and Parenthood: The European Agenda” in Joanne Conaghan and Kerry Rittich, eds.,
Labour Law, Work, and Family: Critical and Comparative Perspectives (Oxford: Oxford University Press,
2005) 217.suit their personal needs. 21 Conflicts may be settled by determinating whether there are pressing business reasons that make accommodation of personal needs impractical. States have responded in varying degrees with a range of initiatives that are at least partly tied to a work-family agenda. These typically include provisions for maternity and parental leave, with or without pay. However, other more specific work-family balance policies are being explored. For example, in 2002, England introduced a provision whereby workers with children under the age of six, or disabled children under the age of 18, could request flexible work arrangements. 22 Employers are required to give such requests serious consideration, but are not required to grant the request and can refuse on grounds including costs, detrimental impact on quality or performance, or an inability to reorganize work among other staff. The right is primarily a procedural one, requiring serious deliberation by the employer. There is evidence that since the introduction of the law, flexible arrangements to accommodate parental responsibilities have increased. 23 In 2006, this right was broadened to include those with responsibilities for caring for adults. 24 In the United States, legal responses to the challenge of work-life and family-life balance are considerably restricted by what Joan Williams describes as the constricted public sphere.25 This aversion to the public sphere makes it unlikely that there will be extensive public funding for family-friendly leaves. 26 Such statutory entitlements that do exist, like those under the Family and Medical Leave Act, are available to only a small proportion of the workforce, and are rather meager, creating only entitlements to unpaid leave which many people will not be able to afford to take. Nor is discrimination on the basis of marital or family status explicitly prohibited by statute. Hence, in the United States, scholars explore the extent to which promotion of family-unfriendly work practices can be challenged through sex discrimination litigation. 27 A report from the Center for WorkLife Law at Hastings College of Law notes a significant increase in employment-related discrimination litigation dealing with work-family responsibility conflicts. 28 The report also claims that there is a greater likelihood of success in family responsibility discrimination suits than for other kinds of discrimination lawsuits. In May, 2007, the Equal Opportunity Employment Commission 21 “The Right to Flexibility” in Joanne Conaghan and Kerry Rittich, eds., Labour Law, Work, and Family: Critical and Comparative Perspectives (Oxford: Oxford University Press, 2005) 99 at 116. 22 Employment Rights Act, (U.K.), 1996 c. 18 as amended by the Employment Act 2002. Employment Act 2002 (U.K.), 2002 c. 22, s. 80F(3). 23 Linda Dickens, “Equality and Work-Life Balance: What's Happening at the Workplace” (2006) 35 Indus. L.J. 445. 24 The Work and Families Act 2006 (U.K.), 2006, c. 18. See Grace James, “The Work and Families Act 2006: Legislation to Improve Choice and Flexibility?” (2006), 35 Indus. L.J. 272. 25 Joan Williams, Undbending Gender: Why Family and Work Conflict and What to Do About It (Oxford: Oxford University Press, 2000) at. 236. 26 See, however, Thomas A. Kochan, Restoring the American Dream: A Working Families’ Agenda for America (Cambridge, MA, The MIT Press, 2005) with its impassioned call for legal reforms in this area. 27 See, for example, Laura T. Kessler, “Keeping Discrimination Theory Front and Center in the Discourse over Work and Family Conflict” (2007), 34 Pepp. L. Rev. 313. Kessler notes a reluctance by U.S. courts to read in family responsibilities as an element of sex discrimination, or to apply a disparate impact analysis to employment practices that burden the fulfillment of family obligations. For a discussion of the Australian situation, see Belinda Smith and Joellen Riley, “Family-Friendly Work Practices and the Law” (2004), 26 Sydney L. Rev. 395, arguing that the absence of family-friendly work practices can amount to sex discrimination. 28 Mary C. Still, Litigating the Maternal Wall: U.S. Lawsuits Charging Discrimination against Workers with Family Responsibilities (Hastings, CA., UC Hastings College of Law Center for Worklife Law, 2006).
published a document providing guidance about the enforcement of federal discrimination
laws in situations involving care-giving responsibilities. The document acknowledges that
the laws do not directly prohibit discrimination against family members providing care for
children or ill or disabled dependents, but argues that employer actions may be seen as
discrimination on the basis of sex, or be based on a worker’s association with an individual
with a disability. 29
In Canada, government policy over the past thirty years has responded to demands for more
family-centred workplace entitlements through a variety of measures, including the provision
of statutory rights to maternity and parental leave 30, the provision of income replacement
measures during these leaves 31, the introduction of compassionate care leave, 32 and the right
to emergency leave for personal reasons and for urgent matters relating to family members.33
Some of these responses have been shaped by Charter and human rights litigation.34 The
cases have often been framed as a claim to be free from discrimination on the basis of sex,
with arguments that the treatment of pregnant women by employers and government limits
on access to benefits, have fallen short of meeting the requirements of gender equality.
In Fairness at Work: Federal Labour Standards for the 21st Century 35, Harry Arthurs
explores in more detail how labour standards legislation should be adjusted to balance the
competing demands for employer flexibility and work-life balance. He notes that labour
standards legislation contributes to a general promotion of human rights by improving the
material conditions of work and reducing employment insecurity. Arthurs describes the
range of pressures that contribute to the competing demands of work, family, and personal
responsibilities, including increased female participation in the paid--labour market,
increased instability of family units, rising demand for elder care, immigration and the
consequent weakening of family support networks, the changing structure of working time
arrangements and information and communication technologies that allow work to be
performed at any time, often in any location. These concerns lead him to recommend the
regulation of working time in ways that attempt to balance worker need for family and
personal time with employer interests in maintaining flexibility in a globalized competitive
environment. Some of his proposals include establishing a unit within the Labour Program
that would be responsible for research and education on work-life balance; granting
employees the right to refuse overtime in excess of stipulated weekly and daily limits;
29
U.S., EEOC, Enforcement Guidance: Unlawful Disparate Treatment of Workers with Caregiving
Responsibilities,( Number 915.002), (23 May 2007), online:
http://www.eeoc.gov/policy/docs/caregiving.html.
30
Labour standards legislation give mothers and parents the right to take leaves for these purposes. See,
for example, the Employment Standards Act, S.O. 2000, c. 41, providing for pregnancy leave (s. 46), and
parental leave (s. 48).
31
The Employment Insurance Act provides for benefits to be paid to mothers for maternity leave and child-
care leave to parents of newly-born or adopted children: Employment Insurance Act,.S.C. 1996, c. 23, s. 12.
32
See, for example, Employment Standards Act, S.O. 2000, c. 41, s. 49.1; Employment Insurance Act, S.C.
1996, c. 23, s. 12(3)(d) and s. 23.1. This leave is meant for situations where an employee needs time off
work to care for family member who is expected to die within 26 weeks of the commencement of the leave.
33
See, for example, Employment Standards Act, S.O. 2000, c. 41, s. 50.
34
The cases are discussed below in Section 5 of the paper.
35
Federal Labour Standards Review Commission, (Gatineau, Human Resources and Skills Development
Canada, 2006)
online: http://www.hrsdc.gc.ca/en/labour/employment_standards/fls/final/page00.shtml. . The federal
government is currently assessing how it will respond to Arthurs’ suggestions.extending the right to refuse work beyond regularly scheduled limits if it would conflict with significant family commitments; and a right to up to ten days of unpaid leave for family responsibilities. Arthurs specifically proposes the introduction of a scheme similar to that introduced in England in 2002, whereby employees may request flexibility with respect to hours of work, timing of work, and location of work. As in the English scheme, the obligation on the employer would be a procedural one, giving the employee an opportunity to discuss the request, and requiring the employer to give reasons if it refuses the request in whole or in part. There would be no appeal from the decision of the employer on the merits, although complaints could be made about the failure of an employer to adhere to the procedural requirements for considering the request. What is absent in the recommendation is a consideration of how this interacts with human rights obligations prohibiting discrimination on the basis of marital or family status. 36 The discussion below details at some length the developing jurisprudence which recognizes that there may be more than a procedural duty on employers to be flexible in accommodating the familial care obligations of employees. For unionized employees who may have an accessible forum through the grievance arbitration process to challenge employer decisions on the merits, such a labour standards right may be of minimal impact. For non-unionized employees, the statutory standard is likely to be more significant, but in the absence of imposing a substantive obligation on employers, it would remain to be seen whether it leads to increased flexibility in Canadian workplaces. Other government responses to these issues have included the development of childcare strategies37 (not without considerable disagreement on the forms they should take) and the use of tax policy as a means of encouraging or facilitating greater participation in the labour market by women. These responses evoke considerable debate about their effectiveness and whether the measures in place are indeed the most appropriate for encouraging greater work- life and work-family balance. This chapter will not take up those debates, but instead will turn to the role that the Charter of Rights and Freedoms and anti-discrimination legislation play in promoting greater gender equality and non-discrimination on the basis of marital and family status. 4. Labour Law and Human Rights The importance of human rights as part of the Canadian labour law tradition arises from a number of converging trends. First, human rights legislation has long targeted discrimination in employment. Many cases going before human rights tribunals and boards of inquiry are initiated by employees or persons seeking employment, making claims that their right to be free from discrimination has been breached by employer action. Second, unions have often been successful in transforming human rights protection from being a purely statutory right, to one that is fully embedded in collective agreements, thereby making claims of 36 Arthurs does comment, in Chapter 6 of the report, on the general need for co-operative strategies between the Human Rights Commission and the Labour Program to promote human rights in the workplace. 37 See OECD, Directorate for Education, Early Childhood Education and Care Policy: Canada – Country Note (2004) and Canada’s Universal Child Care Plan, online: http://www.universalchildcare.ca/en/home.shtml.
discrimination subject to the grievance arbitration provisions in collective agreements. 38
Third, the use of grievance arbitration to adjudicate human rights complaints has been further
extended as a result of statutory provisions in some jurisdictions authorizing arbitrators to
interpret and apply human rights statutes. 39 The Supreme Court of Canada has definitively
interpreted the Ontario statutory framework as granting arbitrators a broad jurisdiction to
consider human rights claims pursuant to a collective agreement, whether or not the
collective agreement explicitly establishes the right or access to the grievance process for
violations of the human rights standards. 40 Fourth, unions face the possibility of being held
jointly liable with employers for human rights violations and so must be alert to the content
of collective agreement provisions that might be discriminatory, and must be ready to
participate in consideration of how employees may be accommodated. 41 With the
accommodation of family responsibilities emerging as a significant issue in many cases
alleging discrimination on the basis of family status, union liability issues and the design of
appropriate accommodation policies will be a major issue for both employers and unions.
Furthermore, arbitrators also have authority to interpret and apply the Charter of Rights and
Freedoms to collective agreement grievances, leading to the possibility of refusing to enforce
provisions that are in violation of the Charter. 42 There will often be difficult questions of the
appropriate framework for analyzing discrimination claims, including whether the approach
to Section 15 claims, laid out in Law v. Canada (Minister of Employment and Immigration)43,
should be followed in determining whether there has been a discrimination prohibited by
either a human rights statute, or specific clauses in the collective agreement. 44
38
Gerald Hunt and David Rayside, eds., Equity, Diversity, and Canadian Labour (Toronto: University of
Toronto Press, 2007).
39
Canada Labour Code, R.S.C. 1985, c. L-2, s.60(1)(a.1), as amended; LabourRelations Code, R.S.B.C.
1996, c. 244, s. 89(g), as amended; Trade Union Act, R.S.N.S. 1989, c. 475, s. 43(1)(e), as amended;
Labour Relations Act, 1995, S.O. 1995, c. 1, s. 48(12)(j), as amended; Labour Code, R.S.Q. 1977, c. C-27,
s. 100.12 (a), as amended.
40
Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42,
[2003] 2 S.C.R. 157. A recent arbitral award has held that arbitrators operating in jurisdictions where the
governing labour relations statute does not expressly provide the power to read and apply human rights
statutes nevertheless have the authority to apply these statutes because of Parry Sound: Re Ottawa Police
Services Board and Ottawa Police Association (Carriere) (2007), 160 L.A.C. (4th ) 118.
41
See Michael Mac Neil, Michael Lynk and Peter Engelmann, Trade Union Law in Canada (Aurora,
Canada Law Book, 2007 Update) at Chapter 11; Central Okanagan School District No. 23 v. Renaud
[1992] 2 S.C.R. 970; 95 D.L.R. (4th) 577.
42
Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, 125 D.L.R. (4th) 583.
43
[1999] 1 S.C.R. 497, 170 D.L.R. (4th) 1 [Law].
44
Some of the issues arising from Law are considered in J. Keene, “The Supreme Court, the Law Decision,
and Social Programs: the Substantive Equality Deficit” in F. Faraday, M. Denike & K. Stephenson, eds.,
Making Equality Rights Real: Securing Substantive Equality Under the Charter (Toronto: Irwin Law,
2006); D. Gilbert, “Time to Regroup: Rethinking Section 15 of the Charter” (2003), 48 McGill L.J. 627; D.
McAllister, “Section 15 - The Unpredictability of the Law Test” (2003), 15 N.J.C.L. 35. Recent human
rights cases applying Law include Ontario Secondary School Teachers’ Federation v. Upper Canada
District School Board (2005), 78 O.R. (3d) 194 (Div. Ct.); British Columbia Public School Employers’
Assn. v. B.C.T.F. (2003), 15 B.C.L.R. (4th) 58 (C.A.); Gwinner v. Alberta (Minister of Human Resources
and Employment) (2002), 217 D.L.R. (4th) 341 (Alta. Q.B.), aff’d (2004), 245 D.L.R. (4th) 158 (Alta.
C.A.), leave to appeal to the S.C.C. refused (2005), 371 A.R. 400; and B.C. Government and Service
Employees’ Union v. British Columbia (Public Service Employee Relations Committee) (2002), 216
D.L.R. (4th) 322 (B.C.C.A.). Other recent rulings have opposed the transposition of Law into a human
rights setting: Withler v. Canada (Attorney-General), 2006 BCSC 101, 137 C.R.R. (2d) 224; Vancouver
Rape Relief Society v.Nixon, 2005 BCCA 601, 262 D.L.R. (4th) 360, leave to appeal to the Supreme CourtMore complex issues arise from the interaction of human rights and labour law, such as whether arbitrators have exclusive or concurrent jurisdiction over human rights claims when a collective agreement is in effect, 45 which forum is the most appropriate for resolving issues, and the exercise of remedial authority. This chapter only tangentially touches on these issues as they relate to claims based on marital and family status. 5. Family and Marital Status as Prohibited Grounds of Discrimination It was not so long ago that some employers would require a woman to resign from employment upon marrying, or maintained a policy favouring the employment of married men over married women, 46 or favoured the continuing employment of married persons over single persons. 47 Cases demonstrate some of the stereotypical assumptions such as the belief that a woman’s married status would mean the employer would not be able to transfer her.48 Cohabitation outside marriage was viewed, not as discrimination on the basis of marital status, but as a moral judgement about lifestyle choices. 49 Benefits extended to spouses were not available to unmarried people or to same-sex couples. By the time the Charter of Rights and Freedoms was enacted in 1982, all human rights codes had already included marital status as a prohibited ground of discrimination, with family status being added in many jurisdictions during the 1980s and 1990s. By 2008, New Brunswick was the only province in which human rights legislation did not explicitly prohibit discrimination on the basis of family status. Many of the statutes do not define either marital status or family status. Where marital status is defined, the definitions typically indicate that it means the status of being married, single, divorced, widowed, or separated. 50 The of Canada refused (2007), 147 C.R.R. (2d) 376; and Canada (Human Rights Commission) v. M.N.R. , [2004] 1 F.C.R. 679 (F.C.). 45 See e.g. Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General), 2004 SCC 39, [2004] 2 S.C.R. 185; Calgary Health Region v. Alberta (Human Rights and Citizenship Commission), 2007 ABCA 120, 281, D.L.R. (4th) 252. 46 See, for example, a description of the policies of a school board in Ferguson v. Cape Breton District School Board (1987), 8 C.H.R.R. D/4198 (N.S.C.A.) which were in effect until at least 1976 . 47 Québec (Comm. des droits de la personne) c. École conduite St-Amour Inc. (1983), 4 C.H.R.R. D/1451 (C.P. Qué.) 48 Niedzwiecki v. Beneficial Financial System (1982), 3 C.H.R.R. D/1004 (Ont. Bd. of Inquiry). An additional irony in the case is that the complainant was looking for employment because she was required to resign her job with her predecessor employer upon marrying her husband who also worked for the same employer. See also Lannin v. Ontario (Ministry of Solicitor-General) (1993), 26 C.H.R.R. D/58 (Ont. Bd of Inquiry), finding that it was inappropriate for an employer to ask a job candidate about the likelihood that her husband might be transferred. 49 Blatt v. Catholic Children's Aid Society (1980), 1 C.H.R.R. D/72 (Ont. Bd. of Inquiry). See also Murray v. Toope (1990), 13 C.H.R.R. D/94 (Nfld. Bd.Inq.) holding that discrimination in employment because of an extramarital affair was not discrimination on the basis of marital status, but that it was discrimination on the basis of sex when the policy was applicable to only female employees. Since the Blatt decision the Ontario Human Rights Code changed the definition of marital status to clearly encompass non-marital cohabitation. As well, note that the Ontario Human Rights Code also holds that religious and other organizations can discriminate on the basis of marital status where marital status is a bona fide qualification because of the nature of the employment. See, e.g. Garrod v. Rhema Christian School (1991), 15 C.H.R.R. D/477 (Ont. Bd.Inq.) 50 For example, Human Rights Code, R.S.O. 1990, c H.19, s. 10(1).
definitions also usually include common law relationships 51, and several of them include being engaged to be married. 52 Rather than referring to marital and family status, Quebec prohibits the making of distinctions on the basis of civil status, which the Supreme Court of Canada has held to include spousal, parent-child, and sibling relationships. 53 Saskatchewan is the only jurisdiction to narrow the definition of marital status by explicitly stating that discrimination on the basis of a relationship with a particular person is not discrimination on the basis of marital status. Where family status is defined, it is often limited to parent-child relationships, 54 although several jurisdictions adopt a wider approach, applying it to relationships by blood, marriage or adoption. 55 Saskatchewan, while confining the definition to parent-child relationships, provides an expansive definition of those relationships to include step-parenting, adoption, and persons who stand “in place of a parent to another person.” 56 There is at least one early human rights tribunal decision concluding that in the absence of statutory prohibition of discrimination on the basis of family status, one could not infer its prohibition from the prohibition of discrimination on the basis of sex or marital status. 57 As well, the Supreme Court of Canada determined that family status could not be interpreted as including same-sex couples 58, leaving a statutory gap that was later dealt with through Charter litigation and statutory amendments to human rights codes to explicitly prohibit discrimination on the basis of sexual orientation. Although the Charter of Rights does not explicitly protect against discrimination on the basis of marital or family status, the Supreme Court in a series of decisions has confronted the extent to which these can be considered as grounds analogous to those listed in Section 15, and thereby subject to equality guarantees. In Miron v. Trudel 59 the Court held that a term in a statutorily authorized automobile insurance policy which provided coverage only to spouses defined as married persons discriminated on the basis of marital status. In determining that marital status was a ground analogous to those listed in section 15, the Court noted that “discrimination on the basis of marital status touches on the essential dignity and worth of the individual”, that “[p]ersons involved in an unmarried relationship constitute an historically disadvantaged group” and that “marital status often lies beyond the individual's effective control”. 60 However, it does not mean that all distinctions made between married and unmarried couples will necessarily be classified as discrimination – individuals may choose not to get married in part to avoid the application of legal rules, such as those relating to the division of property. 61 51 Ibid. The definition is also gender neutral in including “conjugal relationships outside marriage”, thereby including same-sex and opposite-sex conjugal relationships. 52 For example, The Saskatchewan Human Rights Code, S.S. 1979, c. S-24.1, s. 2(1)(i.01) 53 Brossard (Town) v. Quebec (Commission des droits de la personne), [1988] 2 S.C.R. 279, [1988] S.C.J. No. 79 [Brossard].. 54 This is the case in Newfoundland and Labrador, Nova Scotia, Ontario and Saskatchewan. 55 This is the case in Alberta and Nunavut. 56 The Saskatchewan Human Rights Code, S.S. 1979, c. S-24.1, s. 2(1)(h.1)(ii). 57 Metz v. Saskatchewan Cycling Ass’n (1995), 24 C.H.R.R. D/425 (Sask Bd. of Inquiry). Complainant was claiming that she was denied employment because she was a single mother. 58 Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; (1993), 100 D.L.R. (4th) 658. 59 [1995] 2 S.C.R. 418 [Miron]. 60 Ibid. at paras. 151-153. 61 Nova Scotia (Attorney General) v. Walsh, 2002 SCC 83, [2002] 4 S.C.R. 325.
The Court has also concluded that discrimination on the basis of sexual orientation is a
violation of the Charter, so that statutory entitlements limiting pensions and other benefits to
cohabiting couples of the opposite sex are prohibited. 62 Although the Court has not fully
addressed whether “family status” is an analogous ground under the Charter, in Thibaudeau
v. Canada 63 a dissenting opinion by Justice McLachlin forcefully argued that divorced
custodial parents should be treated as an analogous ground under section 15 of the Charter;
the majority opinions did not get to the question because they held that no burden had been
placed on single custodial parents. McLachlin’s position would suggest that other instances
of family relationships may also be considered analogous grounds as well. It is also clear
that analogous grounds under Section 15 may arise from the intersection of listed grounds.64
In the context of claims relating to marital and family status, it is not difficult to imagine that
the claims may intersect with claims of discrimination on the basis of sex, age, and disability
for example. 65
Work-family balance issues have clearly been faced in cases claiming discrimination on the
basis of pregnancy, which the Supreme Court 66 and human rights codes clearly recognize as a
form of sex discrimination. In Brooks, the complainants argued that a health insurance plan,
providing coverage to all employees except pregnant women during the seventeen weeks
surrounding their expected due date, discriminated on the basis of sex and family status. The
Court, overturning its earlier decision in Bliss v. Attorney General of Canada, 67 concluded
that discrimination on the basis of pregnancy was also discrimination on the basis of sex.
Having so found, it refused to consider the question of whether it was also discrimination on
the basis of family status. There is no doubt that the Court’s willingness to overturn Bliss
was influenced by the position it had already taken to interpreting section 15 of the Charter,
rejecting the use of a “similarly situated” analysis in determining whether there had been
equal treatment.68 The Court took note of increasing female participation in the labour
market, stating: “Combining paid work with motherhood and accommodating the
childbearing needs of working women are ever-increasing imperatives. That those who bear
children and benefit society as a whole thereby should not be economically or socially
disadvantaged seems to bespeak the obvious.” 69 It is quite easy to imagine the same
argument being extended to other family responsibilities as well. For example, if one replaces
the word “bearing” with “rearing” in the previous quote, we would have a particularly
apposite analysis of why family status might be considered an analogous ground. One major
difference, though, is that child rearing and other family responsibilities need not inherently
fall on women only. This highlights the important role that the prohibition of discrimination
62
Egan v. Canada, [1995] 2 S.C.R. 513; Vriend v. Alberta, [1998] 1 S.C.R. 493; M. v. H., [1999] 2 S.C.R.
3; 171 D.L.R. (4th) 577 [Egan].
63
[1995] 2 S.C.R. 627, (1995), 124 D.L.R. (4th) 449. The majority determined that provisions of the
Income Tax Act, requiring a divorced spouse to pay tax on support payments, did not discriminate because
no “burden” had been placed on single custodial parents.
64
Law, supra note 43 .
65
See Hutchinson v. British Columbia (Ministry of Health) (No. 4) (2004), 49 C.H.R.R. D/348, 2004
BCHRT 58 holding that a restriction in a government program preventing a disabled recipient of a benefit
designed to enable her to live independently discriminated on both the basis of family status and disability
in prohibiting its use to pay a family member to provide needed care.
66
Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219 [Brooks].
67
[1979] 1 S.C.R. 183. The definition of ‘sex’ in some human rights statutes was also changed to explicitly
include claims based on pregnancy. See e.g. Human Rights Code, R.S.O. 1990, c. H.19, s. 10(2).
68
Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, 56 D.L.R. (4th) 1.
69
Brooks, supra note 66 at 1243.on the basis of family status may have in opening the door for both mothers and fathers to make claims in relation to their parental obligations, and thus challenging the classical and ongoing reality that domestic arrangements are deeply gendered in their organization. 70 In at least one case the Supreme Court proved itself reluctant to extend the Charter’s reach in providing a lever for those who would claim that statutory policies negatively impact on achieving family-work balance. In Symes v. Canada, 71 the appellant, a self-employed lawyer, argued she should be permitted to claim childcare expenses as a business deduction under the Income Tax Act. The Court concluded that the Act could not be interpreted to allow such a claim, and there was no violation of Section 15 of the Charter as a result of the Income Tax Act provisions. The denial of the ability to claim the payments as a business expense did not discriminate on the basis of sex, according to the majority, because there was no evidence that women, generally, bore a disproportionate responsibility for the payment of childcare expenses, a point on which the dissenting judges appeared to disagree. Diana Majury provides a useful insight on the decision, arguing that the failure of the judges to link the social costs of child rearing, disproportionately borne by women, with the economic costs of child caring, demonstrates the limits of what was in fact a rather formalistic equality analysis adopted by the Court. 72 This overview makes obvious that discrimination on the basis of family and marital status is now clearly prohibited by statute in almost all jurisdictions. Furthermore, section 15 of the Charter has played a major role in extending protection to previously marginalized groups such as unmarried cohabitants and same sex couples. The recognition of pregnancy as a form of sex discrimination has had a major impact in the ability of pregnant women to retain job security while taking time off work to provide care for their newborn children, and ensures their access to benefits without discrimination. It is now time to probe more deeply how the prohibition on family and marital discrimination is being deployed to deal with a range of issues in the workplace, the most pressing of which is the extent to which employers are subject to a duty to accommodate workers whose family responsibilities may conflict with workplace rules. 6. Family Responsibilities: Discrimination and Accommodation The Ontario Human Rights Commission has described provisions prohibiting discrimination on the basis of family status as relatively under-developed, noting that its report released in 2007 is the first time that this ground of discrimination has been explored in depth, despite its enactment into the Human Rights Code in 1982. 73 Until recently, there has been a paucity of jurisprudence on the application of the standard generally, and in the employment context in particular. However, more people are turning to the human rights standard as a means of seeking accommodation within the workplace for family responsibilities. Arbitrators, human 70 Unbending Gender, supra note 8 . 71 [1993] 4 S.C.R. 695. 72 Diana Majury, “The Charter, Equality Rights, and Women: Equivocation and Celebration” (2002) 40 Osgoode Hall L.J. 297. 73 Ontario Human Rights Commission, Policy and Guidelines on Discrimination Because of Family Status (2007).
rights tribunals and the courts are seeking to understand what is meant by the prohibition of discrimination on the basis of family status and how best to develop this area of the law. There are a few earlier cases that demonstrate employer antipathy to the hiring or continuing employment of women with young children. 74 In one early example, an employer engaged in what the tribunal described as a legitimate reduction in the workforce, but in deciding who to lay off, suggested it would be more appropriate to let a female employee with a young child go because the employer was interested in having employees who could make a long-term commitment. 75 The tribunal had little difficulty in concluding such blatant employer favouritism to be prohibited discrimination on the basis of family status. A major issue now being confronted in workplaces is the extent to which an employer may be required to accommodate requests from employees for flexibility in scheduling or for short-term leave arrangements arising from the employee’s need to fulfill family responsibilities, especially those relating to the care of children and elderly dependents. A 2004 decision of the British Columbia Court of Appeal provides one approach to the analysis of family status claims. 76 In the case, an arbitrator had concluded there was no discrimination when an employer changed the working hours of the grievor, thus creating a conflict with her responsibilities as a parent. The grievor had a son who was described as a high-needs child with a major psychiatric disorder, and the grievor and the boy’s doctor felt it was particularly important for the grievor to be at home with her son at the end of the school day. The arbitrator concluded that the term family status “in these circumstances deals with the status of parent and child, and not with the individual circumstances of a family's needs, such as those concerning childcare arrangements.” 77 The Court of Appeal disagreed. It employed what is now the classical approach in human rights cases, asking first whether there is prima facie evidence of discrimination, and then considering whether the employer position is based on a bona fide requirement, which includes examining whether the employer has made a reasonable effort to accommodate. 78 In making the initial assessment of whether there has been discrimination on the basis of family status, the Court sought to craft a standard that would not transform every employment/family obligation conflict into an actionable claim for discrimination. Hence, it rejected the approach in two earlier human rights tribunal cases 79 which appeared to suggest that discrimination exists whenever “practices or attitudes … 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 family”. 80 The Court considered such an approach as unworkable, as an overbroad 74 This paper does not examine the more extensive jurisprudence dealing with claims that a woman has been discriminated against because of her pregnancy, which is now treated as a subset of sex discrimination. 75 Broere v. W.P. London & Associates (1987), 87 C.L.L.C. 17,026, 8 C.H.R.R. D/4189 . 76 Health Sciences Association of B.C. v. Campbell River and North Island Transition Society, 2004 BCCA 260, (2004), 240 D.L.R. (4th) 479. 77 Ibid., at para. 18. 78 British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union (B.C.G.S.E.U.), [1999] 3 S.C.R. 3 and British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868. 79 Brown v. Department of National Revenue (Customs and Excise), [1993] 19 C.H.R.R. D/39; Woiden v. Lynn, [2002] C.H.R.D. No. 18 [Woiden]. 80 Woiden, ibid., at para. 107.
definition of family status would have the potential to cause mischief and great disruption in
the workplace. Instead, it proffered the following guidelines suggesting that:
“[A] prima facie case of discrimination is 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. I think that in the vast majority of situations in which there is a
conflict between a work requirement and a family obligation it would be
difficult to make out a prima facie case.” 81
There is little discussion of the standard in the decision. There is no indication of why a
finding of discrimination can only be made in those cases where there has been a change in a
term or condition of employment. There seems to be an implication that an employee, when
hired, should be expected to accommodate child care needs to the needs of the workplace.
Only if the employer seeks to change the terms and conditions under which the employee
first started working can a worker require an employer to consider accommodating family
needs. And even then, only if the change seriously interferes with a substantial parental
obligation. Other than the stated concern for the “mischief” that would be done to the
workplace, there is no discussion of why it is only serious interference with substantial
obligations that need be considered by the employer. Nor is there any discussion of how one
determines what is a substantial obligation, although on the facts of the case itself, in the light
of the significant needs of a disabled child, the court did conclude that this was one of the
rare cases where a finding is warranted that there was prima facie evidence of discrimination.
A significant point made by the Court is that one cannot assume that claims under human
rights legislation have been displaced by employment standards legislation providing for a
variety of employee rights designed to address the conflict between work and family.
Employment standards and human rights can work in tandem in extending protection for
workers with family responsibilities.
One consequence of the Health Science Association approach is that it removes from the
employer, in the vast majority of cases, the burden of demonstrating undue hardship in
attempting to accommodate the family responsibilities of the worker. If there is no
discrimination, there is no need to even discuss accommodation. The reference to mischief
that would be done in the workplace surely relates to a not fully-articulated concern that
requiring not only individualized assessment of employee requests, but also effort at
accommodation to the point of undue hardship, would be unduly burdensome for employers.
Instead of requiring a balancing of family and work responsibilities in the context of an
accommodation analysis, this approach assumes the legitimacy of expectations that family
responsibilities will be shaped to some significant extent to conform to workplace
requirements.
Several cases have adopted the Health Sciences Association approach and applied it to
varying factual situations. In Palik v. Lloydminister Public School Division No. 9982 a
Saskatchewan tribunal concluded the employer had not discriminated when it dismissed an
employee who was absent for two days without leave after being refused permission to take
two days of unpaid leave to attend her diabetic son’s provincial hockey tournament. The
81
Health Science Association, supra, note 76, at para. 39
82
(2006), 58 C.H.R.R. D/149 (Sask. H.R.T.)You can also read
