On April 21, 2023, the British Columbia Court of Appeal released its decision of British Columbia (Human Rights Tribunal) v Gibraltar Mines Ltd, 2023 BCCA 168 (“Gibraltar”), in which the Court considered whether the test for family status discrimination requires an employer to change a term of employment in order for prima facie discrimination to be found.
Before Gibraltar, the test for family status discrimination was set out in the decision of Health Sciences Association of British Columbia v Campbell River and North Island Transition Society, 2004 BCCA 260 (“Campbell”). In Campbell, the British Columbia Court of Appeal stated that, when there is no governing provision in a collective agreement or employment contract, then there is a prima facie case of discrimination when employer changes a term or condition of employment that results in a “serious interference with a substantial parental or other family duty or obligation of the employee”.
Further, the Court in Campbell River established that:
With respect to whether the impact of the term or condition of employment is serious, the Court held that a mere impact on any family obligations or conflict between family and work obligation is not enough to be considered discriminatory.
In relation to whether the obligation interfered with is substantial, the Court held that the negative impact as a result must be a “real disadvantage to the parent/child relationship and the responsibilities that flow from that relationship, and/or to the employee’s work.”
For example, simply being scheduled to attend an activity with a child is not a substantial parental or familial obligation. However, attending to a child’s medical needs or complying with a custody agreement are considered substantial parental or familial obligations.
In relation to the decision of Gibraltar, two of employees of Gibraltar Mines Ltd. (“GML”) had a child together and needed to change their work schedules to accommodate their childcare responsibilities. After exchanging proposals back and forth with the employer, they were unable to agree on an accommodation, and one of the employees filed a human rights complaint against GML, alleging discrimination on the basis of family status, marital status, and sex.
The Human Rights Tribunal (the "Tribunal”) dismissed the complaint on marital status and sex but allowed the complaint of discrimination to proceed on the basis of family status. GML then appealed the Tribunal’s decision to the Supreme Court of British Columbia. Ultimately, the Court sided with GML and dismissed the complaint. In doing so, the Court determined that, based on the facts, there was no change in a term or condition of employment such that there could be no discrimination on the basis of family status. The Tribunal then appealed that decision from the Supreme Court of British Columbia.
On appeal, the Court of Appeal for British Columbia decided for the employee and found that the test for family status discrimination does not require a change to a condition of employment. The Court-then sent it back to the Supreme Court of British Columbia for determination of the remaining issues.
In doing so, the Court modified the law as set out above with respect to Campbell River. In particular, the Court held that it isn’t necessary for there to be a change in a term or condition of employment before a prima facie case of discrimination can be found, just that a term or condition of employment results in a serious interference with a substantial parental or other family duty or obligation of the employee. Thus, the question is now one of materiality: Did the term or condition of employment result in a serious interference with a substantial parental or familial obligation? If the answer to this question is yes, then prima facie discrimination can be found.
While the decision of Gibraltar is not binding on courts outside of the Province of British Columbia, courts in other jurisdictions may find it persuasive. As a result, employers may be required to accommodate an employee as their life changes even if the employment itself is not changing, specifically with regards to family status. In particular, an employer may have a duty to accommodate an employee’s changing life circumstances unless it would cause the employer undue hardship or the work term or condition is a bona fide occupational requirement.
Currently, it is unclear what “substantial” familial or parental obligations look like. As an example, an employee may request that they be allowed to work partially from home so that they can pick up and drop off their child from a specialized care facility and make up the remainder of the work time at home. Unless the work they’re doing requires them to be in-person, this might be a substantial parental obligation that would be seriously affected if they are not allowed flexibility.
To get more information about this, or other employment law related questions, please contact our employment law group.
Authors:
Tara L. Hamelin, Partner and Hannah A. Schmakeit, Student-at-Law