Family Status Discrimination Investigations are Becoming Even More Complex

Published on: April 7, 2022

Workplace discrimination has always been one of the more challenging areas for investigators, due to the often subtle ways discrimination presents.

It is important for employers and investigators to understand all grounds of discrimination under human rights legislation; in the wake of the COVID-19 pandemic, however, one particular ground that is being discussed more than ever is family status, due to school and daycare shutdowns, and aging relatives who might require additional care.

As workers scramble to balance work and family obligations, we can expect that discrimination complaints on the basis of family status will continue to rise.

The recent case of United Nurses of Alberta v Alberta Health Services (2021 ABCA 194) demonstrates just how complex consideration of family status discrimination can be. In this case, the Court of Appeal discussed the Moore test, which is the prima facie test for discrimination set down by the Supreme Court of Canada in 2012.

In the Moore case, the Supreme Court said that in order to prove discrimination, a complainant must show that they have a characteristic protected from discrimination; that they have experienced adverse treatment; and that the protected characteristic was a factor in the adverse treatment.

Since that time, many tribunals and arbitrators considering family status accommodations specifically, have found that in addition to the Moore factors complainants must also show that they made reasonable attempts to fulfill their family obligations before a discrimination case can be made out (this is often known as the Johnstone test, which arose in the Federal Court of Appeal case Canada v. Johnstone).

In the United Nurses case, the Court decided that a consistent test for establishing a prima facie case of discrimination should apply in all human rights cases, and that requiring those seeking family status accommodations to jump an additional hurdle was unfair and unnecessary. Leave to appeal the decision to the Supreme Court was sought, and the case was dismissed in January 2022.

Given the evolving law in this area, both employers and investigators should keep three things in mind when it comes to family status accommodations:

  1. Although the United Nurses case is specific to Alberta, it serves as a sign that the requirement to demonstrate self-accommodation efforts prior to being able to establish a case for family-status discrimination is quite possibly coming to an end in Canada;
  2. The law around this particular ground of discrimination is changing, and accordingly creative thinking should be implemented to accommodate parents and other caregivers whenever possible;
  3. In the post-COVID era, the bar will likely be set higher to accommodate those with family status accommodations, particularly given the move to remote work in many workplaces.

If you would like to learn more about how to investigate cases involving discrimination in the workplace, consider attending our Investigating Discrimination in the Workplace course.