British Columbia Human Rights Tribunal Recommends Employers Faced With Family Status Discrimination Complaints Confer With Employees To Determine If Mutually Satisfactory Solution Available

• Published date: 18 November 2020
• Subject Matter: Employment and HR, Discrimination, Disability & Sexual Harassment, Employee Rights/ Labour Relations
• Law Firm: Littler Mendelson
• Author: Ms Rhonda B. Levy and Barry Kuretzky

On October 18, 2019, we wrote about the tests currently used to establish family status discrimination in Canada, and recommended policies and programs employers can put in place for employees that need accommodations due to parental or other family accommodations (2019 Article). As we stated, the British Columbia Court of Appeal in Envirocon Environmental Services, ULC v. Suen, 2019 BCCA 46 (Suen), refused to reconsider the high burden test for establishing family status discrimination set out in Health Sciences Assoc. of B.C. v. Campbell River and North Island Transition Society, 2004 BCCA 260 (Campbell River), and applied that test. On August 8, 2019, the Supreme Court of Canada dismissed an application for leave to appeal from the judgment of the British Columbia Court of Appeal in Suen, confirming that the Campbell River test remains good law in British Columbia. The Campbell River test provides that a prima facie case of discrimination on the basis of family status is made when:

1. There is a change in a term or condition of employment imposed by an employer; and

2. The change results in a serious interference with a substantial parental or other family duty or obligation of the employee. [Emphasis added]

As we concluded in the 2019 Article, in British Columbia it is not enough for the employee to have a desire to perform the parental or other family duty, there must be a need to perform the duty and no one else available to perform it.

On October 27, 2020, the British Columbia Human Rights Tribunal (BCHRT) released its decision regarding the last remaining issue remitted to it by the Court of Appeal in Suen v. Envirocon Environmental Services and another (No. 3), 2020 BCHRT 188 (BCHRT Decision), namely whether Suen's family status was a factor in Envirocon's decision to terminate his employment. The BCHRT dismissed Suen's complaint, finding that he had not established that his family status factored into the termination of his employment. It emphasized, "Ultimately, not wanting to be away from one's family is not, on its own, a sufficient basis for turning down a work assignment in a job where travel is sometimes required." It remains to be seen whether Suen will seek judicial review of the BCHRT's decision.

Importantly, in the BCHRT Decision, the Tribunal offered practical advice to employers faced with employees expressing reluctance in circumstances similar to Suen's, emphasizing that had this advice been followed in Suen, the long, protracted...