V. Discrimination Based on Family Status

1. Defining Discrimination

The Code provides that every person has the right to be treated equally without discrimination because of family status. The purpose of anti-discrimination laws is to prevent the violation of human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice. In many cases, differential treatment because of family status will clearly be discriminatory. However, in other cases it may be necessary to consider whether the treatment can be said to constitute “discrimination” in the sense of being something protected by human rights law. Not every distinction may be considered discriminatory.

There are several ways of defining and identifying discrimination based on family status. Discrimination because of family status includes any distinction, including exclusion, restriction or preference based on family status, that results in the impairment of the recognition of human rights and fundamental freedoms.

In keeping with the decision of the Supreme Court of Canada in Andrews v. Law Society of British Columbia[22], discrimination based on family status may be described as any distinction, conduct or action, whether intentional or not, but based on a person’s family status, which has the effect of either imposing burdens on an individual or group that are not imposed upon others, or withholding or limiting access to opportunity, benefits, and advantages available to other members of society.

In the context of equality claims under s. 15 of the Canadian Charter of Rights and Freedoms (the “Charter”), the Supreme Court of Canada has offered the following three inquiries as a tool for determining whether discrimination has occurred[23]:

  1. Differential Treatment
    Was there substantively differential treatment, either because of a distinction, exclusion or preference, or because of a failure to take into account the individual’s already disadvantaged position within Canadian society?
  2. An Enumerated Ground
    Was the differential treatment based on an enumerated ground, in this case family status?
  3. Discrimination in a Substantive Sense
    Finally, does the differential treatment discriminate by imposing a burden upon, or withholding a benefit from, an individual? The discrimination might be based on stereotypes of a presumed group or personal characteristics, or might perpetuate or promote the view that an individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society who is equally deserving of concern, respect and consideration. Does the differential treatment amount to discrimination because it makes distinctions that are offensive to human dignity?

2. Forms of Discrimination Based on Family Status

2.1 Negative Attitudes, Stereotypes and Bias

Discrimination can take many forms. In some cases, discrimination may be direct and intentional, where an individual or organization deliberately treats an individual unequally or differently because of family status.

Example: A landlord decides that she does not wish to rent apartments to families with young children, and designates her building as “adults-only”.

This type of deliberate discrimination generally arises from negative attitudes and biases related to family status.

Attitudes about caregiving and caregivers are deeply embedded in our society, and negative comments or assumptions about caregivers are often not perceived to be a serious human rights issue. It is a principle of human rights that persons should be judged on their individual attributes, skills, and capacities, rather than on stereotypes and assumptions based on the groups to which they belong. Negative attitudes and stereotypes may lead to harassment and discrimination, and affect an individual’s access to services, employment and housing. Individual assessment combats the effects of negative attitudes and stereotypes based on Code grounds such as family status.

Given that providing care for others is generally viewed as a positive attribute, it may seem strange that family status may be the source of negative attitudes and stereotypes. However, there are a number of ways in which attitudes and stereotypes related to family status may manifest.

Those who provide caregiving, or who are perceived to be caregivers, may be assumed to be less competent, committed, intelligent and ambitious than others. This is often influenced by gender stereotypes. For example, when female employees become parents or take on other significant caregiving responsibilities, they may find themselves shunted on to the “mommy track”, and passed over for promotions, learning opportunities, and recognition because of biases, conscious or unconscious, about the attributes of mothers[24]. On the other hand, men who take on significant caregiving responsibilities may be viewed as less “manly” because of their failure to conform to stereotypical gender roles.

There are also assumptions and stereotypes regarding who should and who should not be providing caregiving. Stereotypes about persons with disabilities, or about individuals who are LGBT may dictate that these persons do not have the capacity to parent well, and should not be responsible for children. As well, it may be assumed that LGBT persons do not have “real” families, and that they have no caregiving responsibilities, when in fact stereotypical notions of the family are effectively making these families and their caregiving needs “invisible”. There are also stereotypes about the parenting capacities of members of various racialized groups, as well as about the responsibility and capabilities of lone parents and young parents.

Treatment of persons identified by family status may also be influenced by attitudes regarding various family forms. For example, disapproval of lone parent families, foster families, families with large numbers of children, or families headed by LGBT persons may result in negative treatment and discrimination. Families formed by adoption may be treated as if they are less “real” or valid than biological families.

As well, access to services and housing by persons identified by family status may be impeded by negative attitudes towards children – for example, that they are noisy, disruptive, and have a lesser right to public spaces or housing than do adults.

2.2 Subtle Discrimination

In some instances, discrimination takes on more subtle or covert forms. Intent or motive to discriminate is not a necessary element for a finding of discrimination – it is sufficient if the conduct has a discriminatory effect.

Discrimination based on a Code ground need only be one of several reasons for the decision or treatment. [25]

Subtle forms of discrimination can usually only be detected upon examining all of the circumstances. Individual acts themselves may be ambiguous or explained away, but when viewed as part of a larger picture, may lead to an inference that discrimination based on family status was a factor in the treatment a person received.

Example: When a woman returns to work after the birth of her first child, she notices that her career, which had seemed to be on a ‘fast-track’, now appears to have stalled. She is given smaller and less important projects to manage, and is passed over for several training opportunities. When she asks about a promotional opportunity, her manager tries to discourage her, stating that the job requires ‘super-dedication’ and ‘killer hours’.

It can be difficult to determine whether subtle discrimination is indeed a factor in such situations. They may therefore require investigation and analysis that examines the context, including the presence of comparative evidence contrasting how others were treated, or evidence that a pattern of behaviour exists. It is not necessary for language or comments related to family status to be present in the interactions between the parties to demonstrate that discrimination on the basis of family status has occurred. However, where such comments are made, they can be further evidence that family status has been a factor in an individual’s treatment.

2.3 Harassment

Section 5(2) of the Code provides that all employees have a right to freedom from harassment in the workplace by the employer, employer’s agent, or by another employee because of, among other grounds, family status. This right to be free from harassment includes the workplace but also the “extended workplace”, i.e. events that occur outside of the physical workplace or regular work hours but which have implications for the workplace such as business trips, company parties or other company related functions.

Section 2(2) of the Code provides that every person who occupies accommodation has a right to freedom from harassment by the landlord or agent of the landlord or by an occupant of the same building because of among other grounds, family status.

The Code contains no explicit provisions dealing with harassment in the areas of services, goods and facilities (section 1 of the Code), contracts (section 3 of the Code) or membership in trade and vocational associations (section 6 of the Code). However, it is the position of the Commission that harassment because of family status in such situations would constitute a violation of sections 1, 3 and 6 of the Code, which provide for a right to equal treatment without discrimination with respect to services, goods and facilities, contracts and membership in trade and vocational associations respectively.

Harassment is defined in section 10(1) of the Code as "engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome”. The reference to comment or conduct "that is known or ought reasonably to be known to be unwelcome" establishes both a subjective and an objective test for harassment.

The subjective part of the test considers the harasser’s own knowledge of how his or her behaviour is being received. This knowledge may arise in different ways. In some situations, it should be obvious that the conduct or comments will be offensive or unwelcome. Some conduct or comments relating to a person’s family status may not, on their face, be offensive. However, they may still be "unwelcome" from the perspective of a particular individual. If similar behaviour is repeated despite indications from the individual that it is unwelcome, there may be a violation of the Code.

Example: Many of the female employees at a particular business become pregnant within a relatively short period of time. Their male manager begins to make jokes that “there must be something in the water cooler”. Other employees do not find this offensive or threatening, and there is no indication that pregnant employees are being penalized; however, one employee fears that the comments indicate that the manager is concerned about the number of pregnancies, and that he looks on her pregnancy with disfavour. She raises her concerns with her manager. If he continues to make such comments, the employee may have a basis for filing a complaint of harassment based on pregnancy or family status.

The objective component of the test considers, from the point of view of a “reasonable” third party, how such behaviour would generally be received. The determination of the point of view of a “reasonable” third party must take into account the perspective of the person who is harassed.[26]

It is important to note that there is no requirement that the individual have objected to the harassment at the time, in order for a violation of the Code to exist, or for a person to claim their rights under the Code. An individual who is the target of harassment may be in a vulnerable situation, and afraid of the consequences of speaking out. Employers, landlords, and service providers have an obligation to maintain an environment that is free of discrimination and harassment, whether or not anyone objects. Each situation must be assessed on its own merits.

Example: When a couple with a small child moves into a new apartment, one of their neighbours comments to them that she has raised her kids and now “has a right to peace and quiet”. This neighbour repeatedly tells them that “children shouldn’t be in apartments – they need yards to play in”. No matter how hard they try to keep their child quiet, this neighbour constantly complains to their landlord about them. The landlord provides the neighbour with information about rights and responsibilities under the Code, and offers either to provide some further soundproofing or to relocate the complaining neighbour to the first available vacant apartment.

Because stereotypes relating to family status differ according to race, sex, marital status, age, sexual orientation, or disability, harassment on the basis of family status may take on different forms depending on whether the impacted individual is identified by other Code grounds. It is the Commission’s position that where multiple grounds intersect to produce a unique experience of discrimination or harassment, this must be acknowledged to fully address the impact of discrimination or harassment on the person who experienced it.

Example: A lesbian mother brings her small child to an infant music class at her community centre. After her partner joins them for one of the sessions, the music teacher makes repeated comments referring to the child’s lack of “proper role models” and a “real family”.

2.4 Poisoned Environment

The Code definition of harassment refers to more than one incident of comment or conduct. However, even a single statement or incident, if sufficiently serious or substantial, can have an impact by creating a poisoned environment.[27] A poisoned environment is based on the nature of the comments or conduct and the impact of these on the individual, rather than on the number of times the behaviour occurs. A consequence of creating a poisoned environment is that certain individuals are subjected to terms and conditions of employment, tenancy, services, etc. that are quite different from those experienced by individuals who are not subjected to those comments or conduct. Such instances give rise to a denial of equality under the Code.

In the employment context, tribunals have held that the atmosphere of a workplace is a condition of employment just as much as hours of work or rate of pay. A “term or condition of employment” includes the emotional and psychological circumstances of the workplace.[28] Management personnel who know or ought to know of the existence of a poisoned atmosphere but permit it to continue thereby discriminate against affected employees even if they themselves are not involved in the production of that atmosphere.[29]

While the notion of a poisoned environment has predominantly arisen in an employment context, it can apply equally where it results in unequal terms and conditions in occupancy of accommodation, the provision of services, contracting or membership in a vocational association.

2.5 Systemic Discrimination and Societal Dimensions

Discrimination on the basis of family status may often take on systemic or institutional forms. Systemic or institutional discrimination consists of patterns of behaviour, policies or practices that are part of the social or administrative structures of an organization, and which create or perpetuate a position of relative disadvantage for persons identified by family status. These may appear neutral on the surface, but nevertheless have an exclusionary impact on the basis of family status. Systemic or institutional discrimination is a major barrier for persons identified by family status.

Systemic discrimination on the basis of family status may be linked to systemic issues related to gender roles and stereotypes. As well, systemic discrimination based on family status may be experienced differently based on intersection with other grounds of discrimination, such as age, disability, marital status, creed, receipt of social assistance, race, and race-related grounds. Systemic or institutional discrimination must be addressed in the context of the interacting impacts of multiple Code grounds.

Systemic discrimination may have its roots in broader societal structures and social attitudes. Conceptions of the family have historically centred around a set of assumptions about gender, marital status, and sexual orientation, with the “ideal” family being centred on heterosexual, marital relationships in which roles are defined according to strict gender norms. There have always been lone-parent and same-sex families, as well as those in which women and men do not conform to gender norms regarding caregiving roles; however, these families have frequently been denied recognition as families, and have been the subject, not only of negative attitudes, but also of outright discrimination and marginalization.

Institutional or systemic discrimination is tied to, and influenced by, wider societal patterns. In particular, the lack of adequate social supports for childcare, eldercare and for persons with disabilities places caregivers at significant disadvantage in accessing employment, housing and services. For example, where evening and weekend childcare services are difficult to access, caregivers may find themselves significantly disadvantaged in finding employment in sectors that require regular shift work, such as nursing or retail. Where caregivers for persons with disabilities must spend considerable time and advocacy to locate and maintain services for their loved ones, this will impact on their ability to find and maintain employment or pursue educational opportunities. Persons with caregiving responsibilities may find themselves having to make extremely difficult decisions in order to meet their caregiving responsibilities. For example, the lack of legal protections for those who must take time off work to care for aging relatives means that individuals may have to chose between losing their jobs or being unable to provide care for their loved ones when they most need it. The lack of social supports weighs most heavily on those who are already disadvantaged and cannot make up, through private funds, for gaps in social supports. These persons are disproportionately women, youth, older persons, lone parents, persons with disabilities and their caregivers, and persons from racialized communities.

The interaction between these societal realities and institutional policies and practices is complex. For example, the situation of a mother of small children who loses her job because of her inability to “balance” her work and familial responsibilities may be the result of the compounding effects of her employer’s rigid and inflexible scheduling policies, the lack of adequate social supports for caregiving, and prevailing gender norms about the role of women as primary caregivers. Employers, housing providers and service providers must take into account the broader societal context in determining whether their programs, policies and services may be having a disproportionate impact on those identified by family status. Failure to take this broader context into account may perpetuate the disadvantage of persons identified by family status and lead to a violation of the Code.

Systemic discrimination may therefore arise when institutions fail to take into account the reality of contemporary family structures when designing their policies, programs and structures. Where organizations fail to design in a way that includes persons with caregiving responsibilities, persons identified by family status may find themselves disadvantaged and excluded.

As is discussed at greater length in the Commission’s Policy and Guidelines on Racism and Racial Discrimination, the Commission employs the following three considerations in identifying and addressing systemic discrimination:

i. Organizational Culture

Organizational culture can be described as shared patterns of informal social behaviour, which are the evidence of deeply held and possibly unconscious values, assumptions and behavioural norms.

ii. Numerical Data

Numerical data that demonstrates that members of certain groups are disproportionately represented may be an indicator of systemic or institutional discrimination. For example, the under-representation of women with young children in senior positions in an organization, together with over-representation in entry-level positions may indicate inequitable practices in hiring, training, promoting and accommodating persons identified by sex and family status. By itself, numerical data is usually not proof of systemic discrimination; however, it may form strong circumstantial evidence of the existence of inequitable practices.

iii. Policies, Practices and Decision-making Processes

Policies, practices and decision-making processes that do not take into account the realities of persons identified by family status may lead to exclusion for persons who are in a parent-child relationship, and result in systemic discrimination.

Specific policies and practices that may create systemic barriers for persons identified by family status are outlined in the sections on Employment, Housing, and Services.

3. Special Programs and Special Interest Organizations

Section 14 of the Code permits the use of special programs in all social areas. This allows preferential treatment or programs aimed only at persons identified by family status, if the purpose of the program is to relieve hardship or economic disadvantage or to assist disadvantaged persons or groups to achieve equal opportunity.

Example: Based on research that indicates that female lone-parents often have difficulty finding and maintaining employment because of the lack of affordable childcare options, a community centre develops a childcare program specifically for low-income female-led lone-parent families.

It is important that special programs be designed so that restrictions within the program are rationally connected to the objective of the program. A failure to do so, can lead to successful challenge of the program and a finding that it is discriminatory.[30]

The Commission’s Guidelines on Special Programs provide detailed information on how a special program can be planned, implemented and monitored.

Section 18 of the Code allows certain types of organizations to limit participation or membership based on Code grounds including family status:

18. The rights under Part I to equal treatment with respect to services and facilities, with or without accommodation, are not infringed where membership or participation in a religious, philanthropic, educational, fraternal or social institution or organization that is primarily engaged in serving the interests of persons identified by a prohibited ground of discrimination is restricted to persons who are similarly identified.

An organization that wishes to rely on this defence must show it meets all of the requirements of this section.

[22]Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 at 174.
[23]Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 at para. 88 [hereinafter “Law”]. Whether or not this test is appropriately applied to human rights legislation has not yet been settled in the caselaw. In Vancouver Rape Relief Society v. Nixon, [2005] B.C.J. No. 2647 (B.C.C.A.), the British Columbia Court of Appeal declined to apply the Law test in determining whether discrimination had taken place, stating at para. 41 that “If ...the Legislature has said that certain behaviour is prohibited and has established the available defences ... the Legislature, as law-maker, has set the balance of competing rights in a way that we may not ignore and which is presumptively fair”. On the other hand, in a recent decision by the Alberta Court of Appeal, Alberta (Minister of Human Resources and Employment) v. Alberta (Human Rights, Citizenship and Multiculturalism Commission), [2006] A.J. No. 988 at para. 67 (Alta. C.A.), the Court relied on the Law analysis in ruling that it was not discriminatory to deny shelter allowances to social assistance recipients who are living with their parents. The Ontario Divisional Court recently applied the Law analysis in Ontario Secondary School Teachers’ Federation v. Upper Canada District School Board , 78 O.R.(3d) 194 at para. 28.
[24] Some studies have indicated that individuals tend to perceive mothers as less competent and committed as employees than either fathers or childless persons of either sex, and that there is less interest in hiring, promoting and educating mothers, relative to fathers or childless employees. See Kathleen Fuegen et al, “Mothers and Fathers in the Workplace: How Gender and Parental Status Influence Judgments of Job-Related Competence”, Journal of Social Issues, Volume 60, Issue 4, page 737, December 2004 and Cuddy et al, “When Professionals Become Mothers, Warmth Doesn’t Cut the Ice”, Journal of Social Issues, Volume 60, Issue 4, Page 701, December 2004.
[25]Gray v. A&W Food Service of Canada Ltd. (1994), CHRR Doc 94-146 (Ont. Bd. Inq.); Dominion Management v. Velenosi, [1977] O.J. No. 1277 at para. 1 ((Ont. C.A.); Smith v. Mardana Ltd. (No. 1) (2005), 52 C.H.R.R. D/89 at para. 22 (Ont. Div. Ct.).
[26]Dhanjal v. Air Canada (1996), 28 C.H.R.R. D/367 at para. 210 (C.H.R.T.).
[27]Dhanjal v. Air Canada, ibid at para. 209.
[28]Dhillon v. F.W. Woolworth Co. (1982), 3 C.H.R.R. D/743 at para. 6691 (Ont. Bd. Inq.); Naraine v. Ford Motor Co. of Canada (No. 4) (1996), 27 C.H.R.R. D/230 at para. 50 (Ont. Bd. Inq.)
[29]Ghosh v. Domglas Inc. (No.2) (1992), 17 C.H.R.R. D/216 at para. 76 (Ont. Bd. Inq.); Naraine v. Ford Motor Co. of Canada (No. 4) ibid at para. 54.
[30]Ontario (Human Rights Commission) and Roberts v. Ontario (Ministry of Health) (No. 1) (1989), 10 C.H.R.R. D/6353 (Ont. Bd. Inq.), aff’d 14 C.H.R.R. D/1 (Ont. Div. Ct.), rev’d (1994), 21 C.H.R.R. D/259 (C.A.).

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