It is common and sometimes necessary for employers to require their employees to work overtime. On the other hand, employees who have children sometimes find it difficult to balance the competing demands of their employers and their family obligations. In a recent decision of the BC Human Rights Tribunal, Falardeau v. Ferguson Moving and others, 2009 BCHRT 272, the Tribunal dealt with a complaint by a terminated employee who alleged that he was discriminated against based on his family status; Mr. Falardeau was fired for refusing to work an overtime shift in order to care for his son. Mr. Falardeau claimed that he had a right to refuse overtime work because of his child care obligations.

Section 13 of the BC Human Rights Code prohibits a person from refusing to employ or continue to employ, or from otherwise discriminating against a person with regard to their employment on the basis of their family status. This case raised an interesting question: whether or not the Human Rights Code can be invoked to prevent an employer from terminating an employee if they refuse to work overtime due to their childcare responsibilities? In Falardeau the Tribunal held that while discrimination on the basis of family status is prohibited, “a serious interference with a substantial parental or other family duty or obligation” resulting from a change in a term or condition of employment must exist before the employee’s right to refuse such change will be protected by the Human Rights Code. In this particular case, the Tribunal held that there had been no such serious interference and dismissed Mr. Falardeau’s complaint.

The test for establishing a prima facie case of discrimination, which was applied by the Tribunal in Falardeau, was first formulated by the BC Court of Appeal in Health Sciences Assn. of British Columbia v. Campbell River and North Island Transition Society, 2004 BCCA 260. In Campbell River, the complainant (a mother with four children) worked for her employer as a part-time child and youth support worker. One of her children, age 13, had severe behavioural problems requiring specific parental as well as professional attention. The employer changed the complainant’s working hours from an 8:30 a.m. to 3:00 p.m. shift to an 11:30 a.m. to 6:00 p.m. shift. In the first hearing, the arbitrator held that the employer had breached Section 13 of the Human Rights Code and had discriminated against the Complainant based on her family status by not reasonably accommodating her family situation. The decision was appealed by the employer and the BC Court of Appeal held as follows:

“Whether particular conduct does or does not amount to prima facie discrimination on the basis of family status will depend on the circumstances of each case. In the usual case where there is no bad faith on the part of the employer and no governing provision in the applicable collective agreement or employment contract, it seems to me that a prima facie case of discrimination is made out when 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 or obligation of the employee. I think that in the vast majority of situations in which there is a conflict between a work requirement and a family obligation it would be difficult to make out a prima facie case.”

In Campbell River, since the arbitrator had accepted evidence of a doctor that the complainant’s son had a major psychiatric disorder and that her attendance to his needs during after-school hours was “an extraordinarily important medical adjunct” to the son’s well being, this constituted a substantial parental obligation of the complainant to her son. The decision by the employer to change her hours of work was a serious interference with her ability to discharge that obligation.

The Campbell River analysis was accepted by the Tribunal in Miller v. British Columbia Teachers’ Federation, 2009 BCHRT 34, although the facts did not involve a complaint of discrimination in circumstances of a conflict between an employee’s work and family obligations. The following paragraph from the decision provides valuable insight into the Tribunal’s position on this issue:

“In the employment context, almost every work-related requirement has the potential to interfere, to some degree, with an employee’s family obligations. Yet there are obvious societal and economic reasons why employers must be able to require their employees to work, and to do so at certain times and in certain places, regardless of the fact that employees might have conflicting childcare or other family responsibilities. Something more is necessary, in that context, to establish discrimination, and the Court of Appeal defined that something more as “a serious interference with a substantial parental or other family duty or obligation”. This is a way of defining, in that context, what is necessary to establish discrimination in the substantive or purposive sense.”

Thus, when an employer requires its employees to work overtime or modify their work schedules, it must be prepared to accommodate those employees where the change would result in a serious interference with the employee’s family responsibilities. Of course, whether or not a workplace schedule change and resulting effect on the employee’s family responsibilities constitutes a serious interference, will depend on the facts of each case. Reviewing the facts in Falardeau provides some guidance on what would and would not meet that test.

Mr. Falardeau, a single father, was employed as a mover with his employer, Ferguson Moving (1990) Ltd. from April 27, 2004 to November 29, 2006, and again from September 10, 2007 to November 29, 2007 when he was fired for refusing to work overtime. During his 2004 – 2006 employment, Mr. Falardeau worked overtime on over 150 occasions and on approximately 15 occasions during his 2007 employment. When he rejoined Ferguson in 2007, Mr. Falardeau knew that the nature of the work included irregular overtime hours involving both individual and multiple jobs.

On October 20, 2004, Mr. Falardeau was granted sole custody of his son, who would have been approximately 7 years old at the time. As Mr. Falardeau did not want to leave his son home alone during the weekdays, he made arrangements for after school daycare. The evidence suggested that Mr. Falardeau’s parents lived in a separate suite in the same house and either they, or Mr. Falardeau’s girlfriend at the time, were able to pick his son up from school. On days when no one was able to pick his son up from school, he had an arrangement with the daycare to be “on standby” to pick his son up. The daycare also charged Mr. Falardeau $10 per minute to continue caring for his son after 6:00 p.m.

On November 29, 2007, when Mr. Falardeau was asked to work overtime he refused to do so because he said he needed to be at home with his son. Consequently, he was fired by his employer. The Tribunal held that the following factors played an important role in its finding that Mr. Falardeau failed to establish that his employer’s demand for overtime work constituted a serious interference with his family responsibilities:

• there was a mutual understanding at the time Mr. Falardeau was re-hired that the nature of the work included irregular and overtime hours;
• Mr. Falardeau had child care available every day if he needed;
• Mr. Falardeau never brought the childcare up as an issue before the November 29, 2007 incident;
• the employer sought to maintain a well established pattern of overtime hours to meet customer needs, and from what the employer knew about Mr. Falardeau’s childcare needs and arrangements, the employer believed Mr. Falardeau had coverage available for his son’s care if required to work overtime;
• there was a history of the employee having worked when his child care needs and arrangements were the same as they were when he refused to work overtime and was fired;
• there was no evidence that Mr. Falardeau’s son had special needs or required care from Mr. Falardeau in particular.

All in all, the Tribunal found nothing in the facts of this case that was outside of the “ordinary obligations of parents who must juggle the demands of their employment and the provision of appropriate care to their children.” The Falardeau decision is consistent with previous BC decisions in this context.

Interestingly, both the Canadian Human Rights Tribunal and the Federal Court have criticized the analysis established by Campbell River and that is being followed in British Columbia for being too narrow and placing too high a burden on a complainant alleging discrimination based on family status.

For example, in Hoyt v. Canadian National Railway, 2006 CHRT 33, the complainant had the responsibility to take care of a young daughter and was pregnant with another child. The complainant’s doctor recommended some modification to her job because she was experiencing discomfort but her employer failed to accommodate her to the extent required by her family status and could not establish that the failure to accommodate was justified based on a bona fide occupational requirement. The Canadian Human Rights Tribunal did not agree with the approach suggested by the BC Court of Appeal, holding that, the “Human rights codes, because of their status as ‘fundamental law’, must be interpreted liberally so that they may better fulfill their objectives.”

Similarly, in Johnston v. Canada (Attorney General), 2007 FC 36, the complainant filed a complaint with the Canadian Human Rights Commission for discrimination based on her family status when her employer failed to accommodate her request for changes in her shifts. The complainant had been experiencing difficulty in finding a childcare provider with matching availability because she and her husband worked on different shift schedules. The Human Rights Commission rejected her complaint so an application for judicial review was made to the Federal Court. The Federal Court held that BC approach, “that prima facie discrimination will only arise where the employer changes the conditions of employment … unworkable and, with respect, wrong in law”.

It is interesting that, despite the criticism that has been voiced by the Federal Court and the Canadian Human Rights Tribunal, the stricter test continues to be applied in BC. However, employers facing issues with conflicting and competing work and childcare demands should seek legal advice before taking any action that may result in a Human Rights complaint.