The Canadian Human Rights Tribunal (“Tribunal”) has awarded a worker over $35,000, finding that his employer’s refusal to award him relocation expenses amounted to family status discrimination.
In Hicks v Human Resources and Skills Development Canada, the worker was transferred from Nova Scotia to Ontario. The worker’s wife remained in Nova Scotia to continue providing care for her elderly and ailing mother. Though the worker’s mother-in-law lived in a care home, the worker’s wife augmented her care by checking in on her daily; assisting with laundry, chores and meals; arranging and attending doctors’ visits; and arranging social interactions and supervised excursions.
The worker applied for assistance under the employer’s Temporary Dual Residence Assistance program – a program designed to provide temporary assistance to relocated employees who are required to maintain a second residence because a dependent occupies one of the residences for reasons of temporary illness. The claim was denied primarily because the worker’s mother-in-law lived in a care home rather than with the worker, and therefore was not a “dependent” as defined by the program.
The worker brought a series of challenges to the denial, including a human rights complaint. Ten years after the initial claim was made, the Tribunal agreed with the worker. It determined that the wife’s eldercare duties fell within the protected ground of family status discrimination and that by denying the claim, the employer engaged in discrimination on the basis of the worker’s family characteristics.
The employer argued that the program was not intended to facilitate care giving arrangements where the family member requiring assistance maintained a separate residence. The Tribunal disagreed and determined that the employer did not have a bona fide justification for denying the claim and that the employer should have accounted for the worker’s family circumstances. The Tribunal also noted that the program had recently been expanded to include family members who reside outside of the home, which undermined the employer’s argument that extending the program in this case would amount to undue hardship.
Ultimately, the employer was ordered to grant the worker’s original claim, plus interest. The Tribunal also ordered $15,000 in compensation for pain and suffering and another $20,000 in compensation for the discriminatory conduct. By failing to consider its duty to accommodate to the point of undue hardship and the consequences of its decision to deny the worker’s claim, the employer had shown “disregard and indifference” for the worker’s family status.
This decision is a reminder that the limits of family status accommodation remain murky, at best. What if, for example, the worker’s mother-in-law was not ailing but instead simply had a close relationship with her daughter and was upset that her daughter was relocating to Ontario? Would the employer have been required to grant the worker’s claim in this situation? Could it be argued that the claim must be granted to allow the daughter to preserve the mother’s mental health? This would seem to be an absurd result, but it is notable that the worker was not required to show that the mother was disabled in order to establish a prima facie case of discrimination.
While this decision provides little usable guidance about the limits of family status accommodation in the workplace, it does serve as a warning of the potentially high costs of failing to meet these (as yet undefined) obligations.
If you have any questions about this recent human rights decision, or any other questions relating to workplace law, please do not hesitate to contact a Mathews Dinsdale lawyer.
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