For many years, I’ve been in the habit of saying that managing employees' absences due to disabilities is the hardest challenge for human resources practitioners. It may be time to change that to dealing with employees’ assertions of their “family status” rights.
Since “family status” was added B.C.’s Human Rights Code as a protected ground, the question of what constitutes family status discrimination has seemed to challenge h.r. practitioners, lawyers, Tribunal members, and judges alike. Family status discrimination is a truly amorphous concept.
As time goes on, the volume of Tribunal and court decisions accumulates and we get a better picture of what it means for employers. And, it seems to me, the trend seems to be to shrink the range of circumstances which will be accepted as amounting to family status discrimination.
At The Human Rights Tribunal
A plain example of this trend occurred with the B.C. Court of Appeal’s release, in February of 2019, of its reasons for decision in Envirocon Environmental Services v. Suen. Brian Suen was an employee of Envirocon, working as a project manager in and from Burnaby, B.C. His position required occasional travel to work sites away from home.
In September, 2015 Mr. Suen’s wife gave birth to their first child. A few months later – in January of 2016 – Envirocon assigned Suen to a project to a project in Manitoba. That assignment would have seen Suen away from his family for 8 weeks straight (with no paid return visits along the way).
Perhaps not too surprisingly, Mr. Suen resisted and ultimately declined the assignment. Envirocon informed Suen that if he did not accept the assignment, he would be dismissed for cause.
Mr. Suen did not capitulate, Envirocon terminated him for just cause reasons, and Suen then filed a human rights complaint alleging discrimination on the basis of family status. Envirocon applied to the Human Rights Tribunal to have that complaint dismissed.
Envirocon argued that “nothing he has alleged is capable of leading to the conclusion that his circumstances are unique, that his child required special care, medical or otherwise, or that he alone was capable of providing such care.” It submitted that, at best, Suen could establish that he is a parent with a conflict between a work requirement and a parental preference.
The Tribunal rejected that argument, stating,
“Mr. Suen’s required absence from his wife and four-month-old infant… over a number of weeks could be found to constitute serious interference with a substantial parental or other family duty or obligation.”
Envirocon appealed that decision and, eventually, the matter was heard by B.C.’s Court of Appeal.
B.C.’s Court of Appeal Weighs In
The Court of Appeal reviewed the question of (i) whether there had been a change in a term or condition of Mr. Suen’s employment and (ii) whether such a change resulted in a serious interference with a substantial parental or other family duty or obligation.
The Court of Appeal concluded…
“[T]he facts alleged by Mr. Suen are not capable of satisfying the second step of the … test. Those facts are only capable of establishing the undisputed fact that he is a parent. 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 is understandable and commendable, he is no different from the vast majority of parents.
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. Nothing in Mr. Suen’s complaint … suggests his child would not be well cared for in his absence. …
[T]he Tribunal’s erroneous finding with respect to the second step of the … test was key to its decision to allow the adverse effect discrimination aspect of Mr. Suen’s complaint to proceed. Because of this error, its decision is arbitrary and cannot stand.”
What Can We Make of This?
Though the decision of the Court of Appeal may come across as rather hard-hearted, the reality is that the concept of family status discrimination must be kept within fairly restrictive boundaries. This may seem like a bit of a “the sky is falling” prediction, but the impact on employers of having to accommodate the situation of every employee who also happens to be a parent would be disastrous.
The problem for employers – despite the seeming willingness of the courts to rein in the Human Rights Tribunal and limit the scope of family status discrimination – remains in the day-to-day decisions they have to make on such topics. These are very difficult, complex decisions.
In this particular instance, it took three levels of adjudication by learned legal minds to arrive at the Court of Appeal’s eventual decision (and that appeal decision involved 8 participating lawyers and 3 appeal justices!!), so what hope do employers and h.r. practitioners have of getting it right?
It’s often the case that, when I read decisions like this, I look back to the origins of the conflict and ask myself, “Did this dispute really need to happen?” Here, it occurred because, 4 months after Mr. Suen’s first child was born, his employer assigned him to 8 consecutive weeks of work away from home.
That was a moment when Envirocon could, instead, have given Mr. Suen a pass on any immediate project assignments to remote locations. It could have said to him, “You know what, you’re a brand new dad and you probably want to stick around home for now, so we’re not going to ask you to go on the road for a few more months.”
That would have been a simple, caring gesture on their part towards an employee who was facing new challenges at home. It probably would have endeared Mr. Suen to Envirocon.
It may not have been the outcome which the emerging “family status discrimination” law would dictate, but the best outcome often is not the “legal” one. And it would have saved Envirocon a whole pile of out-of-pocket legal costs.
This item is provided for general information purposes only and is not intended to be relied upon as legal advice. Informed legal advice should always be obtained about your specific circumstances.