Parental Rights

Many parents find it difficult to balance childcare and professional responsibilities. The demands of work are often a concern when it comes to arranging childcare or plans to go on maternity or parental leave. It is particularly problematic when a term or condition of employment prevents one from carrying out their parental obligations. For example, an employer may impose a new work schedule on an employee, leaving him or her without any available childcare options.

Fortunately for parents, both the British Columbia Human Rights Code, RSBC 1996, c. 210 and the Canadian Human Rights Act, RSC 1985, c H-6 protect employees from discrimination in employment on the basis of family status, which includes childcare obligations.

Whether the British Columbia Human Rights Code or the Canadian Human Rights Act is applicable to an employee’s circumstance depends on whether the employee’s employer is federally or provincially regulated. For example, the federal government regulates industries, including air transportation, banks, and postal and courier services. A full list of federally regulated industries and workplaces can be found here: List of federally regulated industries and workplaces – Canada.ca.

BC Human Rights Code

Section 13 of the Code protects employees from discrimination in employment on the basis of family status, among other protected characteristics.

Although “family status” is not defined in the Code, it is given a broad and liberal interpretation and extends to substantial family caregiving duties or obligations and protects significant interest in relation to family caregiving: Sadvandi. Hudson’s Bay Company, 2024 BCHRT 8.  

In British Columbia (Human Rights Tribunal) v. Gibraltar Mines Ltd., 2023 BCCA 168, the Court of Appeal summarized the test that complainants must satisfy when alleging family status discrimination based on conflicts between work requirements and family obligations.

[F]or the purposes of assessing conflicts between work requirements and family obligations, prima facie discrimination is made out when a term or condition of employment results in a serious interference with a substantial parental or other family duty or obligation.

A complainant must establish: (1) that their family status includes a substantial parental or other duty or obligation; (2) that they have suffered a serious adverse impact arising from a term or condition of employment; and (3) that their family status was a factor in the adverse impact.

The requirement that the parental or other duty or obligation be substantial is necessary to give meaning to the protected characteristic of family status. Otherwise, any family obligation that is impacted by a person’s employment conditions could support a finding of prima facie discrimination.

Notably, a parent’s obligation to secure childcare is viewed as an essential part of the parent’s obligation to his or her children. Without childcare, a child’s wellbeing is at risk: Chato v. Tech Metals Ltd. and another, 2024 BCHRT 188. 

Furthermore, the adverse impact must be a serious one. As an example, an employer’s failure to return an employee on maternity leave to her position may constitute as a sufficiently serious form of discrimination on the basis of family status, contrary to the Code: LaFleche v. NLFD Auto dba Prince George Ford (No. 2), 2022 BCHRT 88.

Canadian Human Rights Act

Family status is a prohibited ground of discrimination under section 3 of the Canadian Human Rights Act. Section 7 protects employees from discrimination in employment on this basis, among other protected grounds.

In Canada (Attorney General) v. Johnstone, 2014 FCA 110, the Federal Court of Appeal held that in order to make out a prima facie case where workplace discrimination on the prohibited ground of family status resulting from childcare obligations is alleged, the individual advancing the claim must show:

1. that a child is under his or her care and supervision;
2. that the childcare obligation at issue engages the individual’s legal responsibility for that child, as opposed to a personal choice;
3. that he or she has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible; and
4. that the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation.

For parents, the first factor will normally flow from their status as a parent. In the case of de facto caregivers, there will be an obligation to show that their relationship with the child is such that they have assumed the legal obligations which a parent would have found.

The second factor requires the complainant to show that the child has not reached an age where he or she can reasonably be expected to care for him or herself, and it also requires demonstrating that the childcare need at issue is one that flows from a legal obligation as opposed to resulting from a personal choice. For example, in Flatt v. Treasury Board (Department of Industry), 2014 PSLREB 2, the adjudicator accepted there is a legal obligation to provide nourishment for a child, but determined it was the grievor’s personal choice on how to provide that nourishment.

The third factor is highly fact specific and requires the complainant to demonstrate that reasonable efforts have been expended to meet those childcare obligations through reasonable alternative solutions, and that no such alterative solution is reasonably accessible. As an example, it might be relevant whether relatives were reasonably accessible options for childcare.

The fourth factor requires that the at issue workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation. This is similar to the requirement in the BC context that the complainant suffered a serious adverse impact arising from a term or condition of employment.

Bona Fide Occupational Requirement

Whether a complaint is made pursuant to the BC Human Rights Code or the Canadian Human Rights Act, an employer may be able to establish a valid justification for its discriminatory actions with respect to childcare obligations.

The employer will need to demonstrate, on a balance of probabilities, that the discriminatory action was a bona fide occupational requirement. The employer will need to show:

1. that the employer adopted the standard for a purpose rationally connected to the performance of the job;
2. that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; and
3. that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.

Whether you are an employee who is struggling to obtain accommodation at work regarding childcare obligations, or you are an employer who is defending a human rights complaint or having difficulty working out proper accommodation with an employee on this issue, please consider contacting our firm for a consultation. We are here to help!