Cavanaugh v. Sea to Skye Hotel (No. 2) is a decision of the BC Human Rights Tribunal. In that case, a female banquet manager, a single parent with a young child, was terminated. The job entailed being available for functions and coordinate events, which would sometimes require long and irregular hours. The manager understood these requirements when she accepted the job.
However, over the next few months, the employer had concerns about her performance. These were addressed informally and she passed her probationary period. Following an event, where she left early, because of child-care obligations, she was terminated.
The Tribunal did not accept the definition of “family status” in the BC Court of Appeal’s decision in Campbell River as exhaustive. In Campbell River, the Court of Appeal stated that a prima facie case of discrimination might be made out where “ a change in a term or condition of employment imposed by an employer results in a serious interference with a substantial parental or other family duty.” In Cavanaugh, the issue, in the Tribunal’s view, was whether the refusal to continue her employment because of assumptions about her ability to work based on family status. The Tribunal found that a traditional approach to discrimination – as applied, for example, to race, gender and sexual orientation – was appropriate.
The complainant need not establish that family status was the only factor in her termination. In Cavenaugh it was a factor. First, the Tribunal found, despite the employer’s concerns about performance, that the manager leaving the event early changed the employer’s view of her. Second, the employer was quite concerned about her changed child-care situation – her daughter was no longer able to spend weekends with the father. Third, the employer felt she was not up the long and irregular hours based on one incident. Thus the Tribunal found that family status was a factor in the dismissal. Once a prima facie case is established, the burden shifts to the employer to show that long and irregular hours were a bona fide occupational job requirement. The employer, which was not represented by counsel, did not argue that it was.