Court decision on family status a win for gender equity in workplace, commissioner says

The British Columbia Court of Appeal has clarified the legal test of what constitutes family status discrimination under the Human Rights Code in a decision that could force employers to be more flexible when it comes to granting parents and caregivers workplace accommodations. 

B.C. Human Rights Commissioner Kasari Govender, who was an intervenor in the case, said the ruling is a victory for women.

"The real significance of this is about gender equality in the workplace because we know that women continue to bear the primary responsibilities for caregiving in their families and disproportionately in society," said Govender. 

"It will shift what counts as discrimination in the workplace. Previously the burden was on a person claiming discrimination in this context to show that an employer had instituted a unilateral change to the employment. That's a different requirement than other forms of discrimination." 

Family status is a protected personal characteristic under the B.C. Human Rights Code, similar to age, sex and race. Its scope includes "substantial family caregiving duties or obligations and significant interests in relation to family caregiving."

The Court of Appeal decision relates to a 2018 B.C. Human Rights Tribunal complaint filed by Lisa Harvey, at the time a journeyman welder at Gibraltar Mines near Williams Lake, B.C., who alleged discrimination by her employer upon return to work from maternity leave.

Prior to maternity leave, Harvey and her husband worked the same 12-hour shift at Gibraltar Mines. After the birth of their child, the couple asked to work different shifts and brought forward two options that would allow the family to access child care.

The request was rejected, and the company instead suggested that either Harvey or her husband switch to an opposing 12-hour shift. Harvey launched the human rights complaint.

Paula Krawus, Harvey's lawyer in the human rights complaint, called the ruling "extraordinary."

"This decision is good for parents," she said. "It represents, in my view, an expansion in the right not to be discriminated against based on a parental or family obligation."

According to Krawus, the Court of Appeal decision ends the confusion around what constitutes family status discrimination and the narrow legal test that put the onus on the complainant to prove their employer had changed a term of employment. 

Krawus and Harvey did not participate in the judicial review or Court of Appeal process.

Gibraltar Mines could still apply to the Supreme Court of Canada to have the decision overturned, but Govender feels it's unlikely. 

"The Supreme Court of Canada has turned down a lot of opportunities to consider law on family status discrimination and some of the confusion that reigns across the country on this issue," she said. "But I do continue to think that there are important issues to resolve here and issues that have very significant impacts."