In three recent decisions the Canadian Human Rights Tribunal concluded that childcare responsibilities fell within the protected ground of “family status” (Richards v. Canadian National Railway). While this does not mean that employers must accommodate all childcare issues, it does suggest that they should not be dismissed lightly, especially in the federal jurisdiction. In Richards(and related cases) three female employees, fired for refusing transfers due to parental responsibilities, and the Tribunal concluded that they were discriminated against based on “family status.” The Tribunal reinstated them with back pay, $15,000 for pain and suffering, and $20,000 as compensation for “reckless” discrimination.
The female complainants, two were single mothers with primary custody, had been laid off and were recalled, as per the collective agreement, to work at another terminal for an unknown period of time. CNR initially granted an extension for them to report to work. However, when they failed to report for work in Vancouver, they were terminated.
The Tribunal adopted a broad approach towards the scope of “family status.” Unlike the narrower approach by the BC Court Appeal in the 2004 decision inHealth Sciences Association of British Columbia the Campbell River v. North Island Transition Society, which required a serious interference with substantial parental or family duty or obligation of the employee, the Canadian Human Rights Tribunal was of the view that this approach effectively established that some grounds, such as family status, being deemed less important. The Tribunal found that the extension to report for work in Vancouver was not reasonable accommodation. It found to be CNR insensitive to the complainants, including a lack of response to requests for accommodation, and failure to meet and discuss the situation. CNR’s failure to meet the procedural obligations of the duty to accommodate was a violation of the Canadian Human Rights Act. CNR neglected to conduct any meaningful individualized assessment of the complainants’ situations and investigate any alternative forms of accommodation. As well, the Tribunal noted that CNR did not prove that granting a leave of absence to the complainants would have cost CNR undue hardship.