BC Human Rights Tribunal Finds No Family Status Discrimination where Employee’s Schedule Conflicted with Daycare Closure Time
It is not uncommon for employees to take the view that their work schedule interferes with their familial obligations. In Ziegler v Pacific Blue Cross (No. 2), 2020 BCHRT 125, the British Columbia Human Rights Tribunal (the “Tribunal”) rejected an employee’s claim that a change to her work schedule, which resulted in her being unable to pick up her child from daycare before it closed, constituted discrimination in her employment on the basis of family status.
The decision is illustrative of the current state of the law in British Columbia regarding family status discrimination, which had been somewhat uncertain before the British Columbia Court of Appeal provided clarification in Envirocon Environmental Services, ULC v Suen, 2019 BCCA 46 (“Envirocon”).
Ms. Ziegler was a unionized employee at Pacific Blue Cross (“PBC”). Before going on maternity leave, she worked a fixed schedule with shifts ending at 4:30 pm. After she returned from maternity leave, PBC put her on a rotating schedule. Under the new arrangement, for roughly one week out of every month, Ms. Ziegler would be required to work a shift that ended at 5 pm. She claimed that a 5 pm finish time at her workplace in Burnaby would not afford her sufficient time to pick up her child from daycare near her home in Langley before it closed at 6 pm. PBC did not accede to Ms. Ziegler’s request to work earlier hours or to switch shifts, noting that if it accommodated her it would have to accommodate others.
Ms. Ziegler did not seek alternative childcare arrangements to accommodate her revised schedule; instead, she resigned, obtained employment elsewhere, and filed a human rights complaint alleging that PBC had discriminated against her on the basis of family status. She argued that the change to her working hours seriously interfered with her parental obligation to pick up her child from daycare before it closed.
To determine whether Ms. Ziegler had made out a prima facie case for family status discrimination, the Tribunal applied the test from Campbell River & North Island Transition Society v HSAB, 2004 BCCA 260 (“Campbell River”). Given the differing legal approaches to prima facie family status discrimination that had evolved federally and in other provinces, there had been some controversy in recent years as to whether Campbell River was still good law. However, as the Tribunal noted, the British Columbia Court of Appeal in Envirocon confirmed that the Campbell River test is the applicable test in British Columbia.
Under the Campbell River test, a complainant must demonstrate that
1) their employer changed a term or condition of the their employment, and
2) the change seriously interfered with a substantial parental or familial obligation.
With respect to the first element of the test, PBC contended that the schedule was not a change to the terms of Ms. Ziegler’s employment. PBC argued that its hours of operation remained constant and only the allocation of shift times to employees changed, and that this was permissible pursuant to a clause in the collective agreement. The Tribunal disagreed, finding that the schedule change constituted a change to the terms and conditions of employment. In this regard, the Tribunal observed that Campbell River also involved a change to a unionized employee’s working hours, and the court in that case found that there had been a change to the terms and conditions of employment. The Tribunal found it immaterial that, given the existence of the collective agreement, it would have been illegal for PBC to negotiate an employment contract (and presumably, an individualized schedule) directly with Ms. Ziegler.
However, Ms. Ziegler failed to convince the Tribunal that the schedule change amounted to a serious interference with a substantial parental duty or obligation. The Tribunal noted the inevitable tensions between working life and parental obligations, and maintained that interferences with ordinary parental duties or obligations do not rise to the level of family status discrimination; “something more” is necessary. A decisive consideration for the Tribunal was the fact that Ms. Ziegler did not consider any home-based private daycare facilities as alternatives. The Tribunal rejected Ms. Ziegler’s claim that only corporate daycares could provide child care services that met her standards, citing a lack of supporting evidence, and noted that instead of searching for a suitable replacement daycare, “her energies went into fighting a battle to get PBC to provide her with an exemption from their revised work schedules […] and alternatively a search for alternative employment.” Consequently, the Tribunal dismissed Ms. Ziegler’s complaint.
The Tribunal’s decision is a practical application of the Campbell River test to an example of the commonly experienced tension between work schedules and childcare obligations. The Campbell River approach recognizes that an overbroad test for prima facie family status discrimination would cause serious disruption to workplaces. Under this standard, modifications to employees’ schedules will likely be considered changes to the terms or conditions of employment. However, such changes only constitute prima facie discrimination if they constitute a “serious interference with a substantial parental or other family duty or obligation”. Changes that interfere with ordinary family duties or obligations do not rise to the level of family status discrimination, as “something more” is needed.
Where a schedule change interferes with an employee’s childcare obligations, the employee will likely not be able to establish a prima facie case for family status discrimination without first diligently considering alternative childcare options. However, the Tribunal’s decision appears to leave open the possibility that interference with employees’ childcare obligations may amount to prima facie family status discrimination in certain cases; for example, in regions where child care options are limited and no adequate alternatives are available.