The Duty to Accommodate Richard G. Petrie February, 2008

1. The Duty to AccommodateRichard G. PetrieFebruary, 2008

2. Overview • Introduction • Prohibited Grounds of Discrimination • Duty to Accommodate • BFOR • Undue Hardship • Family Obligations • Other Statutory Rights • Sample Case Law • Conclusion

3. Introduction • Human Rights – ever expanding area of law • Union and Non-Union Employers – bound to follow Human Rights Act and principles

4. Introduction • Collective Agreement and contractual rights: • Parry Sound (2003: SCC): Substantive rights and obligations of human rights and employment standards incorporated directly into each collective agreement. • Substantive rights and obligations of human rights and employment standards implicit in employment contract.

5. Prohibited Grounds of Discrimination • A “protected characteristic” is an immutable personal characteristic. • These characteristics constitute prohibited grounds of discrimination. • What is a “protected characteristic” or “prohibited ground of discrimination” differs among provinces.

6. Prohibited Grounds of Discrimination New Brunswick Human Rights Act:

7. Prohibited Grounds of Discrimination Canadian Human Rights Act: • Race • National or Ethnic Origin • Colour • Religion • Age • Sex • Sexual Orientation • Marital Status • Disability • Conviction for which a pardon has been granted • Family Status

8. Prohibited Grounds of Discrimination • Harassment • New Brunswick Human Rights Act specifically refers only to sexual harassment violations • Tribunals in New Brunswick will consider harassment based on a prohibited ground as “discrimination”.

9. Duty to Accommodate • Duty to accommodate is human rights concept developed by courts and human rights tribunals. • “Duty to accommodate” is not legislated in the Atlantic Provinces. • Employers expected to follow law as developed in SCC cases such as O’Malley, Central Alberta Dairy Pool, Meiorin and now McGill.

10. Duty to Accommodate • The “duty to accommodate” was articulated in O’Malley (1985), where the Supreme Court said no right “absolute” and that each conflicting right must be resolved to avoid “undue interference with others”. • “Take reasonable steps to accommodate, short of undue hardship”.

11. Accommodation: BFOR • Meiorin (1999: SCC) • When a prima facie case of discrimination is established, the onus shifts to the employer to prove, on a balance of probabilities, that the discriminatory standard, practice or policy is a “BFOR” (Bona Fide Occupational Requirement).

12. Accommodation: BFOR • Meiorin (1999: SCC) • Rational Connection • Standard adopted for purpose rationally connected to job; • Good Faith • Standard adopted in good faith with belief that it is necessary to fulfill legitimate work-related purpose; and, • Reasonable Necessity • Standard reasonably necessary to accomplish legitimate work-related purpose – must demonstrate that it is impossible to accommodate “individual” without imposing undue hardship on the employer.

13. Undue Hardship • In Central Alberta Dairy Pool (1990), Wilson J. (SCC) said: “The onus is on the employer to show that it made efforts to accommodate the religious beliefs of the complainant up to the point of undue hardship”.

14. Undue Hardship • Central Alberta Pool (1990) set out some relevant factors: • Financial costs? • Disruption of a collective agreement? • Problems of morale of other employees? • Interchangeability of workforce and facilities? • Size of employer’s operation? • Safety? • But not intended to be an exhaustive list

15. Undue Hardship • “Undue hardship” must be evaluated on a case by case basis. • Additional accommodative measures need to make a difference. • “… the end may or may not result in full accommodation”.

16. Undue Hardship The factors that will support a finding of undue hardship are not entrenched and must be applied with common sense and flexibility… For example, the cost of the possible accommodation method, employee morale and mobility, the interchangeability of facilities, and the prospect of interference with other employee’s rights or of disruption of the collective agreement may be taken into consideration… the right to accommodation is not absolute, consideration of all relevant factors can lead to the conclusion that the impact of the application of a prejudicial standard is legitimate. (para. 15) • McGill University (2007: SCC)

17. Family Obligations Federally Regulated Employers: • Canadian Human Rights Act Prohibits Discrimination: • “Family status” refers to the “inter-relationship” that arises from bonds of marriage, consanguinity or legal adoption, including of course, the ancestral relationship, whether legitimate, illegitimate, or by adoption, as well as the relationships between spouses, siblings, in-laws, uncles or aunts, and nephews or nieces, cousins, etc.”

18. Family Obligations • Nova Scotia Human Rights Act Prohibits Discrimination: • “Family status” means the status of being in a parent-child relationship. • No specific “family status” reference in the New Brunswick Human Rights Act • Duty to Accommodate family obligations in New Brunswick

19. Family Obligations Other Statutory Rights: • Employment Standards Act and Canada Labour Code • Parental and Maternity leave • Child Care Leave • Family Responsibility Leave* • Compassionate Care Leave* • Bereavement Leave* • * “Close Family Relationship”

20. Family Obligations Sample Case Law: • Brown v. DNR (1993: CHRT) • Complainant sought straight day shifts as she was unable to find daycare to cover her varying shifts. “We… understand the obvious dilemma facing the modern family wherein the present socio-economic trends find both parents in the work environment, often with different rules and requirements. More often than not, we find the natural nurturing demands upon the female parent place her invariably in the position where she is required to strike this fine balance between family needs and employment requirements.” (para. 74)

21. Family Obligations Sample Case Law: • Brown v. DNR (1993: CHRT) “It is this Tribunal’s conclusion that the purposive interpretation to be affixed to s. 2 of the CHRA is a clear recognition within the context of ‘family status’ of a parent’s right and duty to strike that balance coupled with a clear duty on the part of an employer to facilitate and accommodate that balance within the criteria set out in the Alberta Dairy Pool case… To consider any lesser approach to the problems facing the modern family within the employment environment is to render meaningless the concept of ‘family status’ as a ground of discrimination.” (para. 75)

22. Family Obligations Sample Case Law: • CNR (2006: Can. Arb.) • Grievance concerned forfeiture of seniority and dismissal of employee following failure to report to Vancouver in response to a call. • Grievor was single parent who repeatedly sought to avoid recall to Vancouver and relocation by reason of personal circumstances. • Employer had provided generous leave to allow her to make necessary personal adjustments.

23. Family Obligations Sample Case Law: • CNR (2006: Can. Arb) • Arbitrator Picher said: “This grievance brings to the fore what must be recognized as a constant in any employment relationship, namely the tension between personal and family obligations and obligations to one’s employer”. • No discriminatory practice because it required all parents, whether single or married, to respond to their core employment obligations regardless of personal or family circumstances.

24. Family Obligations Sample Case Law: • CNR (2006: Can. Arb) • Arbitrator Picher said: • “…indefinite and qualified partial parental leave is for the parties to negotiate…” • “…the Company did give the fullest consideration to the grievor’s personal circumstances and her request for compassionate consideration. In fact it accommodated her circumstance, to some extent, by extending for a considerable period of months her obligation to report for work at Vancouver.”

25. Family Obligations Sample Case Law: • CNR (2006: Can. Arb) • Arbitrator Picher said: • “…There was no collective agreement obligation on the part of the Company to effectively waive the provisions of the collective agreement and in effect confer a special status upon the grievor by reason of her personal circumstances. There was, in the end, no violation of the collective agreement itself.”

26. Family Obligations Sample Case Law: • Canadian Staff Union v. CUPE (2006: NS Arb) • Grievor lived in Newfoundland with his common-law partner and her son. On occasion, he also lived with his two sons from a previous marriage. • Grievor had exemplary work record and was most qualified candidate for a vacancy in Halifax. He told the Employer he could not move to Halifax because of his family status, marital status and place of residence. • Grievor asked that he perform the job from St. John’s – Employer ceased to consider the grievor for the job.

27. Family Obligations Sample Case Law: • Canadian Staff Union v. CUPE (2006: NS Arb) • Union argued that decision not to process application was prima facie discrimination and that employer required to accommodate grievor to point of undue hardship by permitting him to work from St. John’s. • Union provided evidence that the job had been performed out of Ottawa for 39 years. • Alternatively, Union argued that requirement to report out of Halifax was arbitrary.

28. Family Obligations Sample Case Law: • Canadian Staff Union v. CUPE (2006: NS Arb) • Employer argued that requirement to report out of Halifax on a regular basis did not amount to discrimination and the facts of the case did not support such a finding. • Employer said decision to base position out of Halifax was due to legitimate business requirements. • Arbitrator Christie dismissed grievance and ruled the Union failed to prove a prima facie case of discrimination.

29. Family Obligations Sample Case Law: • Canadian Staff Union v. CUPE (2006: NS Arb) • Arbitrator said that conflicts and duties faced by grievor were “everyday marital and family commitments [that] were not commitments upon which a finding of discrimination under either the collective agreement or any applicable human rights legislation can be based”. • Grievor’s “inability to relocate” to Halifax not due to family or marital status but was a personal choice.

30. Conclusion • Where do we go from here? • Conflict between employee family obligations and employer obligations under statute. • Accommodation analysis requires an examination of the unique facts and circumstances of each case. • Applicable employers should be prepared to respond to employees who request accommodation due to significant childcare or eldercare responsibilities or, alternatively, to employees whose attendance or performance may be affected, and possibly protected, by “family status” issues. • New Brunswick Human Rights Act does not protect “family status” as yet.