Two recent decisions of the British Columbia Human Rights Tribunal (BCHRT) applied the strict standard test for family status discrimination established by the British Columbia Court of Appeal (BCCA) in Health Sciences Association of British Columbia v. Campbell River and North Island Transition Society, 2004 BCCA (Campbell River).  The Campbell River test, which was confirmed by the BCCA in Environmental Services, ULC v. Suen, 2019 BCCA 46 (Suen) (leave to appeal to the SCC denied), is set out below:

…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.

These recent decisions provide valuable insight into how adjudicators in British Columbia will apply the Campbell River test.

Ziegler

In Zeigler v. Pacific Blue Cross (no. 2), 2020 BCHRT 125, an employee was advised upon her return from maternity leave that her shift that previously ended at 4:30 p.m. would end at 5:00 p.m. one week in every four weeks.  The employee claimed this shift change would sometimes prevent her from getting to her child’s daycare by its 6:00 p.m. closing time because the drive from work to the daycare was between 45 to 90 minutes, depending on traffic.  When the employer refused to return the employee to her previous shift, she resigned, found alternate employment, and claimed family status discrimination under British Columbia’s Human Rights Code (Code). 

Decision of the BCHRT

The BCHRT decided the employee failed to meet the Campbell River test; the employer’s change in a term and condition of her employment did not seriously interfere with a substantial parental duty or obligation.  In arriving at this conclusion, the BCHRT focused on the employee’s failure to explore the availability of alternative daycare options that would meet her child’s daycare needs while allowing her to work the altered shifts proposed by the employer, and her decision to seek alternative employment instead. 

Harvey

In Harvey v. Gibraltar Mines Ltd. (No. 2), 2020 BCHRT 193, the complainant and her husband were employed by the same company where they worked the same 12-hour shift. After their first child was born, the couple asked if one of their work schedules could be modified to facilitate their ability to access childcare. They proposed two options that involved slightly different work schedules and some shared time off.  The employer rejected both proposals and suggested instead that the complainant’s husband switch to a 12-hour shift that was opposite hers on a permanent basis or until a better childcare solution could be found. The complainant rejected the employer’s proposal on the ground that it would have a negative impact on her family. 

The complainant filed a complaint alleging that her employer discriminated against her on the basis of family status, marital status, and sex contrary to s. 13 of the Code.  The employer applied to have the complaint dismissed under ss. 27(1)(b), (c) and (d)(ii) of the Code.  The BCHRT granted the employer’s application to dismiss the complaint on the basis of sex and marital status, however it denied the employer’s application to dismiss the family status complaint. 

Decision of the BCHRT

Section 27(1)(b) of the Code - Dismissal on the basis that the alleged acts or omissions do not contravene the Code

Section 27(1)(b) gives the BCHRT discretion to dismiss a complaint if it does not allege acts or omissions that could, if proven, contravene the Code.  As discussed below, the BCHRT found the complaints on the basis of sex and marital status had no reasonable prospect of success.  Therefore, it considered only whether her family status discrimination complaint should be dismissed pursuant to s. 27()(b) of the Code. 

After conducting a review of decisions relating to family status discrimination in British Columbia and affirming that Campbell River is the applicable test, the BCHRT referenced previous Tribunal decisions pertaining to family status discrimination that decided:

• A change in a term or condition of employment is not the only circumstance that may result in a substantial interference with a significant parental or family duty; and

• The Code’s protection against a serious interference with a substantial parental or family duty applies to those that arise after the start of the employment relationship.   

The BCHRT did not agree with the employer that that the complainant could not satisfy the Campbell River test because there was no allegation of a change in a term or condition of her employment when she returned from maternity leave.  The Tribunal stated the issue was whether the complainant’s regular shift schedule created a serious interference with a substantial parental obligation or duty.  It considered whether factors existed that would take the complaint “out of the ordinary circumstances facing parents juggling the demands of their employment with providing care to their children.”  The Tribunal concluded that, if proven, the following factors might cause it to find that that the complainant’s circumstances were not “ordinary circumstances” similar to those of “the vast majority of parents balancing work and parental obligations,” and enable the employee to satisfy the Campbell River test: 

• Both parents worked the same 12-hour shift and it was difficult to find adequate childcare with hours long enough to cover their extended work days and allow them to pick up and drop off their child; and

• The complainant lived and worked in the Central Interior of the province where childcare options may be much more limited than in a larger urban area. 

For this reason, the Tribunal denied the employer’s application to dismiss the family status complaint under s. 27(1)(b) of the Code. 

Section 27(1)(c) – The complaint has no reasonable prospect of success

The employer applied to have the complaint dismissed under s. 27(1)(c) on the basis that it had no reasonable prospect of success.  The BCHRT dismissed the application because the legal issue—whether the complainant could satisfy the Campbell River test and establish that there was a serious interference with a substantial parental obligation—could not be decided on the parties’ affidavit and documentary evidence.  A hearing was required.  

Bona fide occupational requirement (BFOR) defence

The BCHRT then considered whether it could decide at this preliminary stage, if the complainant proved her case at a hearing, that the employer could justify its conduct as a BFOR. To succeed, the employer would have to prove it took all reasonable and practical steps to accommodate the complainant to the point of undue hardship. 

The Tribunal concluded that if the complainant successfully proved her case at a hearing, the employer might be able to establish the BFOR test, however it could not conclude this was reasonably certain at a preliminary stage. The BCHRT denied the employer’s application to dismiss this part of the complaint under s. 27(1)(c) as it concluded a hearing was required to make findings of fact to determine whether the employer investigated alternative approaches and could not have done anything else reasonable or practical to avoid negative impacts on the employee. 

As noted above, the BCHRT granted the employer’s application to dismiss the parts of the  complaint that alleged she was discriminated against on the basis of marital status and sex on the basis they had no reasonable prospect of success. 

Section 27(1)(d)(ii) – proceeding with the complaint would not further the purposes of the Code

The Tribunal dismissed the employer’s application to dismiss the family status complaint under s. 27(1)(d)(ii) of the Code on the basis that since it was unable to find the complaint had no reasonable prospect of success, if the complainant is ultimately successful at a hearing, she would be entitled to remedies, one of the Code’s purposes.

Bottom Line for Employers

Decisions of the BCCA and the BCHRT relating to family status discrimination, including Ziegler and Harvey, put employers in British Columbia on notice that:

• Employees in the province who allege family status discrimination must satisfy the high standard test set out in Campbell River, which provides that a prima facie case of discrimination on the basis of family status is made when:
  
  • There is a change in a term or condition of employment imposed by an employer; and
  • The change results in a serious interference with a substantial parental or other family duty or obligation of the employee. ​

• The employee must demonstrate that their parental or other family duty is more substantial than regular duties faced by the vast majority of others in their position, and that this interference may result in the child or other family member being made vulnerable in their absence.  It is not enough for the employee to have a desire to perform the parental or other family duty; there must be a need to perform the duty and no one else available to perform it;

• An employee will not satisfy the Campbell River test if they cannot establish that they explored the availability of alternative care options that would be compatible with their work schedule;

• A change in a term or condition of employment is not the only circumstance that may result in a substantial interference with a significant parental or family duty; and

• The Code’s protection against a serious interference with a substantial parental or family duty applies to those that arise after the start of the employment relationship.  

British Columbia’s stringent Campbell River test will be difficult for most employees in the province to satisfy.  Despite the availability to employers of this legal avenue, a hard stance may not always be the wisest approach they can take when faced with an employee’s request to accommodate their childcare or other family obligations.  As we have said in previous publications, there are practical reasons why it may be to an employer’s advantage to work with an employee to identify a solution that is mutually satisfactory, including:

• To develop or preserve a family-friendly reputation, which will enable the employer to attract and retain millennial employees who expect their jobs to fit with their family needs; and  
• To avoid an expensive and time-consuming legal battle.

In fact, as we discussed, when the BCHRT released its decision regarding the last remaining issue remitted to it by the BCCA in Suen v. Envirocon Environmental Services and another (No. 3), 2020 BCHRT 188, the Tribunal recommended that employers take such a practical approach, which would be, “far less costly in terms of time, money, and employee retention.”

Accordingly, when faced with an employee’s request to accommodate their childcare or other family obligations, employers in British Columbia and beyond should consider erring on the side of flexibility and reasonableness in establishing schedules and other arrangements; engaging in open dialogue with the employee to ensure an accurate understanding of their needs; with the employee’s consent, engaging in open dialogue with other employees to assess their willingness to help facilitate an accommodation; and, if a permanent accommodation is not possible, offering a temporary accommodation and access to an employee assistance program that can assist in identifying care options.