B.C. Supreme Court decision on family status a disappointing outcome for gender equality: B.C. Human Rights Commissioner

B.C.’S Human Rights Commissioner Kasari Govender on Tuesday said that a B.C. Supreme Court decision on family status impedes gender equality in the workplace.

B.C.’s Human Rights Commissioner was an intervenor in Gibraltar Mines Ltd. v. Harvey and saw it as a key test of B.C.’s Human Rights Code’s protection against discrimination on the basis of family status.

The case involved a human rights complaint from a welder employed at Gibraltar Mines Ltd. The employee alleged she was discriminated against because the company would not change her shifts to accommodate her childcare responsibilities. At the time of the complaint, her husband also worked the same 12-hour shift at Gibraltar Mines.

“The court has determined that an employer is not required to provide workplace accommodations, such as a shift change, even when a parent is not able to provide adequate childcare, unless the employer changed the worker’s shift,” said Govender. “As women are often still the primary caregivers of their children, this perpetuates inequality in the workforce.”

The B.C. Supreme Court found that discrimination cases involving family status are only valid when the employer has changed the terms and conditions of the workplace, resulting in a serious interference with a substantial parental obligation. In the case of Gibraltar Mines Ltd. v. Harvey, the parents were working the same 12-hour shift prior to having their child, so there was no change in work conditions by the employer.

The Commissioner’s intervention focused on the legal test for family status discrimination. “In other provinces, families who face conflicts between their work schedules and parenting obligations do not have to show their employer changed their terms of employment to make a discrimination case,” said Govender.

“In Alberta, for example, family status discrimination cases don’t hinge on whether a company has unilaterally changed the terms of employment thereby causing childcare issues. The threshold for caregivers to prove discrimination is more restrictive in B.C. and makes it harder for parents, and women in particular, to achieve equality in the workplace.”

It is not yet known whether the decision will be appealed. As an intervenor, the Commissioner cannot appeal the decision. An appeal is possible by the parties in this case, and they have until April 11 to file.