Suen: Family Status Protections for Both Parents

The British Columbia Human Rights Code (the Code) protects employees who have competing work and family obligations from discrimination on the job. Put another way, the law prohibits employers from discriminating against their workers (including by firing them) because of their family status.

Until recently, an employee complaining to BC’s Human Rights Tribunal (the Tribunal) about adverse treatment at work based on their family status had to prove that their employer changed a term or condition of their employment resulting in a serious interference with a substantial parental or other family duty or obligation. This legal test, dubbed the “Campbell River test”, is a strict one and depends on there having been a change in employment – absent that, the employee’s complaint of discrimination would fail. It is also a more stringent test than the one that is currently applied in BC for all other grounds of discrimination.

Suen: Revisiting the Campbell River Test

Interestingly, however, the Tribunal’s recent decision in Suen v Envirocon Environmental Services (No. 2), 2017 BCHRT 226 suggests that the law in the area of family status discrimination may be changing.

The question before the Tribunal in that case was whether Mr. Suen’s complaint against his employer (Envirocon) for family status discrimination should be dismissed. At the heart of Mr. Suen’s complaint was whether his decision to reject a temporary work transfer to Manitoba and stay in BC “in consideration of his wife and [four month old] baby” – a decision that led to his dismissal – was protected by the Code, such that his firing was discriminatory.

It was not up to the Tribunal in this case to conclude whether Envirocon had actually discriminated against Mr. Suen when it fired him – rather its task was to determine whether Mr. Suen’s complaint had a reasonable prospect of success under the Campbell River test and could/should therefore go to a full hearing before the Tribunal. Ultimately, the Tribunal decided that it did and rejected Envirocon’s attempt to have the complaint dismissed.

In reaching its decision, the Tribunal took the opportunity to question whether the Campbell River test is still “good law” in BC. It also suggested that family status complaints should be subject to the same standard that applies to all other discrimination complaints in BC, such that the complainant would need to prove that:

  1. He/she has the protected characteristic of family status (i.e. they have a family);
  2. He/she suffered an adverse impact regarding his/her employment; and
  3. His/her family status was a factor in the adverse impact.

By bringing the legal test for family status complaints in line with the test for all other human rights complaints, the need to prove a “change in employment” would disappear.

Equal Protection for Both Parents

In the course of its reasons, the Tribunal provided interesting commentary on a father’s role in the family. It affirmed that a father shares the responsibility of parenting and to find otherwise would reinforce “stereotypical views of the respective roles of mothers and fathers in both the public and private spheres”. The Tribunal elaborated further:

  1. These stereotypical views “are harmful to both men and women in entrenching expectations and patterns of behaviour that are directly contrary to the purposes of the Code”, and
  2. The reinforcement of stereotypical views with respect to the assumption of childcare responsibilities “is not only harmful to women in their ability to participate free of impediment in social and economic life at the workplace, but also to men and their ability to participate in social and cultural life at home”.

Recognizing the contributions both parents make to the life and development of a child, the Tribunal rejected the idea that “fathers are ancillary to their children’s lives”. Rather, the Tribunal stressed that men should not be limited in their ability to assume childcare responsibilities and should benefit from the protection of the Code.

We welcome the approach taken by the Tribunal in Suen to protect both fathers and mothers from suffering adverse impacts at work as a result of their shared parenting obligations. We are hopeful that this decision reflects a move towards a more sustainable approach to balancing work and family obligations for all parents.

Have a question about your workplace human rights? Contact us!

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