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LEGAL REPORT: LABOUR & EMPLOYMENT Accommodating for family status Rulings and cases across the country continue to address the issue of how employers must deal with employees' family responsibilities. BY GL ENN KAUTH a pretty attractive schedule for a retail job. She works four days a week, with no shifts in the evenings, weekends, or on Fridays. But while that might be rare, Day, the custodial parent of a 13-year- old grandson with "significant disabili- ties," says she needs a specific schedule so she can take care of him. But in April, Day's long run of work- F ing day shifts Monday to Thursday came to an end after her manager declared she needed to be more flexible. As a result, Day began working less than the 28 weekly hours needed to maintain her benefits, something she says she needs in order to pay for her grandson's costly medication. The dispute landed before the Human Rights Tribunal of Ontario, which in June made an order restoring Day's original schedule pending a hearing on the matter. At that hearing, Day will press her claim that Wal-Mart's actions amount to dis- crimination on the basis of family status due to the conflict they would create between her job duties and her child-care responsibil- ities. Wal-Mart, meanwhile, argues it's seeking merely to introduce "reasonable scheduling expectations in line with its business require- ments and Ms. Day's family obligations," according to the interim ruling from adjudicator Alan Whyte. The case illustrates one stream or seven years, Carol Day has worked at a Hamilton, Ont., Wal- Mart on what many would say is of the current law on dealing with fam- ily status claims under Canadian human rights laws. Here, Day's alleged discrimi- nation was a result of actions Wal-Mart took to change her longstanding work schedule that would interfere with her existing child-care duties. But in other cases, an employee might request new hours in order to accommodate the birth of a baby. What, then, is the employer's obligation to be flexible when it's the worker who introduces the change? Following the logic of the B.C. Court of Appeal, accommodation wouldn't be necessary in that case. In 2004, the BCCA ruled in Health Sciences Assoc. of B.C. v. Campbell River and North Island Transition Society that in order to meet the prima facie threshold for discrimi- nation on the basis of family status, it must be the employer who changes a term of employment resulting in a seri- ous interference with a substantial parental or other family obligation. Only then would a business have to prove the change was a bona fide occupation- al requirement, meaning, in part, that accommodating the worker would cause undue hardship. In that case, too, the judges were faced with an employee who had her work hours changed, something she said she couldn't accept due to her obliga- tions to her 13-year-old son with serious medical and behavioural problems. It's an issue human rights tribunals, labour arbitrators, and ultimately the courts are increasingly likely to face as families find themselves struggling to balance work and personal responsibilities. It's also an area of significant contention 38 A UGUST 2009 www. C ANADIAN Law ye rmag.com JACQUI OAKLEY