Wednesday, 6 March 2013

Single, Childless Employees Have Human Rights Too

In a provocative article in today’s Washington Post, “Single, childless and want work-life balance? How taboo” columnist Jena McGregor argues that it is unfair for single, childless employees to be expected to carry the weight for employees with child care obligations.

It is unclear whether Ms. McGregor is aware of the recent Canadian Federal Court decision, which held that child care obligations are the sine qua non of “family status,” a protected ground on which employers cannot discriminate. If she was aware, she does not make reference to it. But the article does permit a consideration of the concerns that that decision raised.

The decision, Canada (Attorney General) v. Johnstone, 2013 FC 113 was met by some with great angst. Those individuals, much like Ms. McGregor, argued that given the court's decision, single, childless employees would be forced to work the shifts that no one else wanted, while those with children would get to cherry pick the plum shifts. (Sorry for mixing metaphors and fruits.)

However, the question that remains unanswered is whether decisions such as Johnstone really afford parents such luxuries.

Contrary to those who may see it otherwise, I would argue that the Canadian Human Rights Act, and other pieces of human rights legislation (such as the Ontario Human Rights Code) do not afford parents special privileges.

The reasoning lies in the wording of the legislation itself. Section 5 of the Ontario Human Rights Code, which was not the legislation considered by the court in Johnstone but which is applicable to most Ontario employees, provides that:

Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
Incumbent in that provision is that wrongful to discriminate, including providing preferential treatment, on the basis of family status. Allowing parents to cherry pick their shifts simply because they are parents would be, in my opinion, a discriminatory practice and could expose employers to a potential challenge by childless employees.

The objective of human rights legislation is not to elevate, but to equalize. In the case of the employees contemplated in the Washington Post article, if those employees truly felt that they were being discriminated against because they were childless, then they might be prudent to seek professional legal advice.

If you are in Eastern Ontario, and if you have questions about the application of human rights laws, the employment lawyers at Kelly Santini LLP would be happy to be of service to you.

As always, everyone’s situation is different.  The above is not intended to be legal advice for any particular situation and it is always prudent to seek professional legal advice before taking any decisions on one’s own case.

Sean P. Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP, and part-time professor at Algonquin College teaching Trial Advocacy for Paralegals. He is a trustee of the County of Carleton Law Association for 2013.

1 comment:

  1. The effect of scheduling shifts around child care obligations is that only parents in some circumstances get preferential treatment.

    There is no situation where people without dependents require accommodation due to their "without-dependent" status. They are like atheists who don't have a regular Friday, Saturday or Sunday they require off for religious reasons.

    The difference here is that people without dependents are going to be asked to disproportionately work outside of "normal" society hours and be alienated from their traditional friends and family at a rate higher than those with children.

    Work the nightshift for years, get promoted (finally!) to the dayshift in a small company. Get switched back to the nightshift because the night person has a child and daycare in a small town is only offered during the day. Not fair.

    The situation is narrower than many believe (i.e. you have to show that arranging child care is impossible in order to be granted a bona fide accommodation - having to work a regular night shift in a large city would not not cut it), but in those fringe situations (smaller communities, workplaces with irregular hours, etc.) only people with dependents will have a valid reason to cherry pick the day shift.

    If this woman could establish that you could not arrange childcare in Toronto due to irregular shifts, my guess is the test isn't too strict, although to be fair her employer does not appear to have prepared any evidence to contradict her position.

    Is the test really "impossible"? What about "incredibly difficult," "prohibitively expensive," or "unsatisfactory to the parent's preference based on credentials, religion of the caregiver, etc."?

    The door's been opened a crack and no one has any idea how wide it will get - including employers who have to balance these factors and make a judgment call.

    Obviously a convicted pedophile would not be acceptable, but where do you draw that "reasonable" line in an area lacking industry wide professional accreditation? Employees without dependents being moved to the nightshift must now bring a human rights complaint challenging another person's accommodation request based on their parenting preferences?

    Waters muddied; floodgates opened.