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IX. Employment

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To a significant degree, the workplace is still built on the assumption that families are composed in a ‘traditional’ fashion, of two married heterosexual parents, one of whom is providing full-time caregiving for children, aging relatives, and other family members as necessary. Work schedules, policies and benefits all too often reflect the assumption that employees do not have substantial caregiving obligations. The corollary to this assumption is the belief that workers who do have substantial caregiving obligations are in some way inferior and undesirable employees.

However, the reality is that all employees will, at some point in their careers, have to juggle the demands of work and caregiving. The recognition of employees’ familial responsibilities is an important element of hiring, retaining, and getting the best possible performances from employees.

It is also the law. Section 5 of the Code requires employers to provide their employees with equal treatment without discrimination because of family status. Section 11 provides that requirements that have an adverse impact on employees who are identified by family status will be discriminatory, unless the requirement is reasonable and bona fide, and the employer has accommodated to the point of undue hardship. In Brown v. M.N.R., Customs and Excise, the Canadian Human Rights Tribunal ruled that employers have a duty to accommodate needs related to family status, including employees’ needs to strike a “fine balance between family needs and employment requirements”.[44] The British Columbia Court of Appeal has ruled that there will be a prima facie case of discrimination, and a resulting duty to accommodate, where 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.[45]

1. Negative Attitudes and Assumptions Related to Family Status

Because of stereotypes and negative attitudes associated with caregiving roles, employers may assume that persons with significant caregiving responsibilities will not be willing to work longer hours, do overtime, or take on challenging or complex projects, and may consciously or unconsciously slot such individuals into workplace roles consistent with these assumptions. Because of continuing societal assumptions regarding gender roles, these stereotypes may have particularly significant impact on women in the workforce.

As well, the stigma that some continue to associate with being a lone parent, a young parent, or an LGBT parent may result in significant disadvantage in the workplace. In Moffat v. Kinark Child and Family Services (No. 4), a human rights Board of Inquiry found that a gay man had suffered discrimination based on family status and sexual orientation when he was subjected to workplace rumours, harassment and false accusations because he was the foster parent to an adolescent boy.[46]

Decisions regarding hiring, promotion, training, or dismissal should not be directly or indirectly based on assumptions related to family status. Family status need only be one of the reasons for a decision or treatment in order for it to be considered discriminatory. Employers should ensure that, rather than judging individuals against presumed group characteristics, they are considered and assessed as the unique individuals they are. For example, rather than assuming that an individual with caregiving responsibilities would not be interested in a relocation or a promotion, he or she should be offered the same opportunities to apply and qualify as other staff.

Example: When interviewing applicants for a promotion, a manager repeatedly asks a candidate who has recently returned from maternity leave whether she is truly “committed” to her career, emphasizing, “this job is not for those who are nine-to fivers”. The candidate is ultimately passed over in favour of an employee who is childless.

Stereotypes may operate during the hiring process, as well as on the job. Employers should therefore be careful during the hiring process not to ask for information that may reveal the family status of applicants. For example, employers should not ask:

  • Whether a person has or is planning to have children;
  • Whether a person has family responsibilities; or
  • Whether the person’s family responsibilities may limit their availability.

Questions regarding irregular hours or ability to travel may reveal the family status of applicants and have the effect of screening out such persons. Questions about the ability of an applicant to undertake such hours or to travel may only be asked where irregular hours or regular travel are a bona fide occupational requirement. In order for a workplace rule to be a bona fide occupational requirement, it must meet the test set out at section VI.1; as part of that test, the employer must demonstrate that it would be impossible to accommodate without undue hardship.

The Code makes an exception for nepotism and anti-nepotism policies. Section 24(1)(d) of the Code specifically permits employers to grant or withhold employment or advancement in employment to someone who is the spouse, child or parent of the employee. For example, an employer can have a policy that spouses, parents or children cannot be employed in positions where one would report to the other. An employer could also have a policy providing preferential treatment to children of current employees for summer employment. Where such policies are in place, an employer may make inquiries during the hiring process as to whether an applicant is the child or parent of a current employee.

Information about an employee’s family status may be relevant to the provision of benefits. Where this is the case, such information should only be requested after the person has been hired. Information that may disclose an employee’s family status should be kept confidential. All information should remain exclusively with designated personnel (such as human resources staff) in a secure filing system.

Co-workers as well as managers and supervisors may hold negative attitudes and stereotypes related to family status, and such attitudes may give rise to harassment or a poisoned work environment. Employers should take positive steps to ensure that their workplaces are free of discriminatory attitudes and stereotypes, and that they are welcoming to persons identified by family status.

2. Workplace Policies, Practices and Culture

Described below are some workplace policies and practices that commonly form barriers for persons identified by family status. Employers should carefully consider their policies on these issues to determine whether they may be posing barriers based on Code grounds, and if so, whether they are bona fide requirements.

2.1 Absenteeism Policies and Leaves of Absence

It is common for persons with family care responsibilities to find that their responsibility to provide care for family members requires absences from work. Such absences may be very short, or much more lengthy. Absences may be planned, or may arise as emergencies.

It is a legitimate goal for employers to ensure that employees are able to reliably and effectively perform their duties. Employers are entitled to manage absenteeism. However, rigid attendance management programs and absenteeism policies that do not take into account the needs of persons with caregiving responsibilities may discriminate on the basis of family status.

Example: An employer’s attendance policy states that any employee absence during a three-month probationary period is cause for termination. A new employee’s mother has a serious fall. He takes two days off from work to attend to her at the hospital and to arrange supports for her return home. Upon his return to work, he is dismissed because of his violation of the attendance policy.

As well, employers may fail to take into account the needs of persons identified by family status when designing their programs and policies. For example, it is not uncommon for employers to allow employees to take time off from work for their own sickness, but to make no provision at all for caring for the needs of sick family members or to require employees to use their vacation days to attend to the needs of their family members. Employees should not find themselves disadvantaged in the provision of benefits as compared to other employees because of their needs related to family status. Where employers provide paid leaves of absence to employees for needs related to disability, creed, pregnancy or for other reasons, employees with needs related to family status should receive comparable treatment.[47]

The Ontario Employment Standards Act[48] provides some minimum entitlements for caregivers:

  • Employers of over 50 employees must provide up to 10 days of unpaid leave for employees to attend to urgent family matters, including a death, severe illness, injury or medical emergency. “Family” in this context includes spouses (including same-sex spouses), children (including step and foster children), grandparents, siblings, spouses of children and any other relatives that are dependent on the employee for care and assistance.[49]
  • Employees are entitled to up to eight weeks of unpaid leave to provide care or support to family members who are at significant risk of death within the next six months.[50]
  • Pregnant employees are entitled to pregnancy leave if they meet certain qualifications, and their job security, seniority and benefits are protected during that leave.[51]
  • Parental leaves are provided to employees who meet the requirements. Job security, seniority and benefits are protected during such leaves.[52]

The Employment Standards Act and the Ministry of Labour should be consulted for detailed information on these entitlements. It should be emphasized that these are minimum standards only and should be interpreted and implemented in the light of the Code. The Code duty to accommodate takes precedence over the requirements of the Employment Standards Act, and employers may be required by the Code to go beyond these minimum requirements.

2.2 Hours of Work and Overtime

Inflexible, excessive, or unpredictable work hours may pose barriers to persons with caregiving responsibilities. Court and tribunal decisions have found that employers may be required to consider modifications to work hours and schedules in order to accommodate needs related to family status.[53]

Inflexible schedules for work hours and breaks may pose barriers for employees attempting to meet their responsibilities both to their employers and to their loved ones. For example, given that few daycares operate prior to 8:00 a.m. or after 6:00 p.m., even the most dedicated employee with children may find it difficult to comply with a work schedule that requires them to start precisely at 8:00 a.m. Of course, there will be circumstances where the nature of the work demands specific start, finish and break times. Where such timetables are not a bona fide requirement, employers should consider designing schedules in a more flexible manner, and should at minimum provide adjustments to accommodate Code-related needs.

Some professions or workplaces have a ‘culture of hours’ in which employees’ value and dedication is judged by the number of hours they are visibly at work, regardless of their productivity or the quality of their work. Such workplace cultures are likely to exclude or undervalue persons with significant caregiving responsibilities, regardless of their skills and accomplishments.

Individuals who have multiple or very heavy caregiving responsibilities may find it impossible to work lengthy hours on a regular basis. Where such hours are not a bona fide requirement, employers should consider offering temporary or permanent reductions in work hours, or other alternative work arrangements.

Similarly, employees with significant caregiving responsibilities may be unable to be consistently available for last-minute demands to stay late or work overtime.

Where social supports for childcare, eldercare, or for persons with disabilities are limited, employees with significant caregiving responsibilities may require accommodations to shift scheduling.

Example: An employee worked rotating night and day shifts. Her husband, a police officer, was required to do the same. After their first child was born, they looked for night-time childcare, but were unsuccessful in finding any in their community. The employee requested her employer to schedule her for straight day shifts. The employer refused. A human rights tribunal found that the employer was required to enter into the accommodation process with the employee, and that it had violated the employee’s human rights.[54]

2.3 Travel Requirements

Where employees have significant caregiving responsibilities, their ability to undertake regular or extensive travel may be limited. Of course, this is not the case for all employees with family responsibilities: employers should not make the assumption that, for example, a person with young children or other significant caregiving responsibilities will not be interested in work that involves travel. Some jobs require regular travel as an essential duty. Where it is not a bona fide requirement, employees should not be denied opportunities because their caregiving responsibilities prevent them from undertaking regular or extensive travel.

Even where travel is an essential duty of the job, employers can accommodate family-status related needs of employees by, for example, recognizing related dependent-care expenses or providing appropriate supports.

2.4 Access to Benefits

Employee benefit plans or employment practices that result in disadvantage because of family status constitute discrimination under the Code.

Persons with caregiving responsibilities are disproportionately likely to find themselves in part-time, casual or other non-standard work.[55] This is particularly true for women. Those in non-standard work are unlikely to have access to pensions and health-related benefits.[56] This has long-term consequences for the economic security of caregivers and has the effect of disadvantaging persons identified by family status, particularly as it intersects with the ground of sex.[57] Where discrepancies in the treatment of full-time and part-time workers have an adverse impact on persons identified by family status, this may be grounds for a complaint under the Code.

2.5 Workplace Culture

Organizational culture may contribute to the marginalization of persons with caregiving responsibilities, either where it is not inclusive of persons with caregiving responsibilities, or where it supports negative attitudes towards persons disadvantaged by family status.

Example: An employer that wishes to develop teamwork and camaraderie among employees sets up regular, non-mandatory after-hours social events for staff, at which colleagues often share information about training and promotion opportunities and workplace events. Employees with caregiving responsibilities, who are not able to regularly attend these events, begin to find themselves “out of the loop”, and at a disadvantage in accessing workplace opportunities.

Example: A mother of small children finds that, although she completes her work efficiently and her manager considers her a good performer, her co-workers assume that she is not “pulling her weight” because she does not regularly stay late at the office, and she is therefore the subject of gossip and resentful comments.

2.6 Reprisal

It is common for employees who need accommodations related to their caregiving obligations to fear that requesting or using such accommodations will be detrimental to their position at work. Employees who seek accommodations related to their family status should not be treated as less valuable or less committed to their work as a result. Employers are responsible for ensuring an environment where caregivers are not afraid to seek and use strategies to accommodate their needs.

Example: A teacher seeks and obtains part-time work in order to balance her caregiving responsibilities with her work. However, she finds that her employer will no longer approve her requests for training opportunities, because the employer perceives her to be “on the parent track”.

3. Workplace Accommodations for Caregiving Needs

Employers should take steps to ensure that the workplace is “family friendly” and has a positive work-life culture. Steps to achieve such a culture include:

  • A visible, senior-level statement of continuing support for an inclusive, family-friendly workplace,
  • Education and training programs for management and staff on the requirements of the Code respecting family status, and
  • The development and implementation of an organizational strategy for ensuring the creation of an inclusive workplace.

Programs and policies should recognize and support the range and diversity of contemporary Canadian families. Recognition of only a narrow spectrum of families is not only not in harmony with the Code, but may create a negative reaction to the organization’s policies and programs, with unintended negative consequences. As well, policies and programs should take into account the impacts of gender, sexual orientation, age, disability, and race-related grounds on the experience of family status.

In many cases, the best approach to accommodating needs related to caregiving is by increasing the flexibility and options available to all workers. This approach is in harmony with the principle of inclusive design, contributes towards employee satisfaction, productivity and retention, aids in employee recruitment, and reduces the need to deal with multiple individual requests. The following is a non-exhaustive list of common policies and programs that address needs related to family status:

Flexible Hours Programs: With a flexible hours program, the employer sets core work hours (for example, from 10 a.m. to 3 p.m.) during which all employees must be at work, and sets the length of a standard work day. Employees can then choose to work from 7 a.m. until 3 p.m., for example, or from 10 a.m. until 6 p.m.

Compressed Work Weeks: Under a compressed work week program, employees work a standard number of work hours but in fewer days – for example, by working 10 hours four days per week, rather than eight hours five days per week. There are many possible variations on this concept.

Reduced Work Hours: Employers may provide either permanent or temporary access to reduced work hours. Employees who work reduced hours should not be disadvantaged in terms of access to training, pro-rated benefits or quality of work.

Job Sharing: This is an innovative form of reduced work hours, in which two employees both reduce their hours and “share” a single position and set of responsibilities.

Leaves of Absence: Beyond the statutorily mandated maternity, parental, and family medical leaves, employers may provide extended or additional caregiving leaves for employees, whether short or long-term. They may include employer funded leaves, employer subsidized leaves, unpaid leaves, or self-funded leaves (where the employee pays in a portion of his or her salary over a period of time to fund the leave, and the employer administers the funds to provide salary continuance during the leave).

Childcare and/or Eldercare Services: This can include information and referral services, the provision of subsidies or vouchers, access to emergency dependent care services, or the provision of on-site care. For example, some large employers who regularly require employees to be available for night shifts have made arrangement to provide night-time childcare for employees.

Employee Assistance Programs: EAPs can provide a wide range of services, including information and referral for a range of programs, counselling, and other supports.

Telework: Under these arrangements, employees may work at least some of their regular scheduled hours at home.

[44] (1993), 19 C.H.R.R. D/39 at para. 74 (C.H.R.T.).
[45] Health Sciences, supra, note 38 at para. 40 (B.C.C.A.).
[46] (1998), 35 C.H.R.R. D/205 at para. 232 (Ont. Bd. Inq.).
[47] In Alberta Hospital Association v. Parcels (1992), 17 C.H.R.R. D/167 at para. 23 (Alta. Q.B.), the Alberta Court of Queen’s Bench found that, where an employer provided benefits to employees for health or disability-related absences, it was discriminatory not to provide similar benefits to employees who were absent for reasons related to pregnancy.
[48] Employment Standards Act 2000, S.O. 2000, c. 41.
[49] Ibid. at s. 50.
[50] Ibid. at s. 49.1. Under the Employment Insurance Act, S.C. 1996, c. 23, ss. 12 and 23, employees who take caregiving, pregnancy or parental leaves may be entitled to employment insurance benefits.
[51] Ibid,, ss. 46-47.
[52] Ibid. at ss. 48-49. 
[53] See Brown v. M.N.R., Customs and Excise, supra note 37at para. 75 and Health Sciences, supra, note 38.
[54] Brown v. M.N.R., Customs and Excise, ibid at para. 78.
[55] Statistics Canada figures for 2004 found that 27.5 percent of all part-time workers aged 25-44 have chosen part-time work in order to care for children (CANSIM Table 282-0014 and 282-0001). This does not take into account caregiving for family members with disabilities, or aging relatives. Over the past 30 years, women have consistently represented 70 per cent of the part-time workforce.
[56] Derrick Comfort et al., Part-time Work and Family Friendly Practices in Canadian Workplaces (Ottawa: Statistics Canada and Human Resources Development Canada, 2003).
[57] In other jurisdictions outside Canada, discrepancies between the treatment of part-time and full-time workers have been the subject of successful human rights complaints. For example, in a case decided by the European Court of Justice, the differential treatment of the mainly female part-time cleaning staff with respect to calculation of length of service and possibility of appointment to permanent staff was found to be sex discrimination: Nikoloudi v. Organismos Tilepikinonion Ellados AE, OJ C-106, 30.04.2005, p.1.

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