British Columbia’s human rights commissioner says a court decision about workplace discrimination involving the mother of a young child is “an important win for gender equality.”
Kasari Govender says the decision “is an important step forward” in protecting workers whose parental duties may have changed during employment, creating conflicts with workplace responsibilities.
“Having a child while you’re currently employed, and having an employer fail to accommodate some needs you have in that context, should be treated the same way as if an employer changes your shift and that doesn’t work for you,” the commissioner told Global News on Monday.
“The finding of this case was around the burden, so how hard is it to show family status discrimination?”
The B.C. Court of Appeal ruled Friday that cases of employer discrimination against a worker’s “family status” can happen “whenever” the terms of employment interfere with an employee’s parental duties.
Previously, employees were required to jump a “big hurdle” to prove the employer had made a change to the employment terms in order show discrimination had taken place, said Govender.
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“The court in this case said, ‘No that isn’t required, you’re going to go the same path as for other forms of discrimination in that way,'” she explained.
“You don’t have to show that the terms of employment have changed you have to show that discrimination has arisen.”
The decision stems from a 2019 legal action taken by welder Lisa Harvey against her and her husband’s employer, Gibraltar Mines Ltd.
Both she and her husband were working the same 12-hour shift prior to having their child, and the company denied multiple requests for accommodation after her maternity leave ended, citing no change in the terms of employment. It also argued there was a lack of “serious interference with a substantial parental obligation,” characterized Harvey’s challenge as “commonplace childcare difficulties,” and said it had proposed reasonable alternatives.
A judicial review last year agreed with Gibraltar’s claim that legal precedent shows there would need to be a change in employment terms in order to find discrimination on the basis of family status.
The B.C. Human Rights Tribunal appealed that decision. Gibraltar tried to quash the appeal on the grounds the tribunal did not have standing, but its objection was dismissed, culminating last Friday’s court decision.
Taseko Mines, Gilbraltar’s parent company, declined to comment on the case saying the matter remains before the courts.
The Appeal Court has now sent the case back to B.C. Supreme Court to be considered under the criteria it set out in the new ruling. Its decision means employers have an obligation to accommodate parents to the point of “undue hardship,” but what constitutes undue hardship for the employer varies case-to-case.
“I find that in the practicalities, a lot of employers will think twice before denying accommodations,” said Richard Johnson, co-founder of Ascent Employment Law.
“What I would caution parents or guardians about is, make sure you’ve done your legwork before going and asking for accommodation. One thing this decision doesn’t change is we as parents or caregivers need to make sure we’re looking for solutions before hoisting the obligation on the employer to accommodate.”
Overall, Johnston described the court decision as a “very positive change for British Columbians.”
— With files from The Canadian Press
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