November 22, 2013 By: Christopher C. Rootham
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One of the questions that often arises in workplaces is how far
an employer must go to accommodate
employees who have child care
responsibilities. The law is currently
evolving towards a requirement
that employers accommodate an
employee’s basic childcare obligations
to the point of undue hardship. This
accommodation can often be as
straightforward as flexibility on the part of the employer.

Family Status has been a prohibited ground of discrimination in Ontario since 1982, and means “the status of being in a parent and child
relationship”. Discrimination on the
basis of family status includes any
distinction based on the status of
being in a parent and child relationship. It means, fairly obviously, refusing to hire somebody because they are a parent would be illegal. Instead of directly discriminating against parents, however, workplaces may discriminate against parents more subtly: by creating rigid work schedules that make it impossible for a parent to arrange for child care, refusing reasonable requests for (unpaid) time off to deal with childcare emergencies, or temporarily transferring an employee
out-of-town where child care may
not be as available.

Often, the negative attitudes, stereotypes or biases are not overt, and sometimes are perhaps not even
intentional. When employees become
parents or take on other significant
care-giving responsibilities, they may
find themselves shunted on to the
“parent track”, and passed over for
promotions, learning opportunities,
and recognition, even when they
continue to work full-time and
perform well. There may be an
assumption that the person with
family responsibilities is unable to
take on bigger responsibilities. In
other cases, the bias is much more
overt. There may be comments
about leaving early or not pulling
one’s weight when time is taken for
parental leave or to fulfill care-giving commitments.

Employees with family responsibilities may also face greater systemic barriers. There may be patterns of behaviour, policies or practices that are part of the social or administrative structures of an organization, and which create or perpetuate a position of relative disadvantage for people with care-giving commitments. While these systems and structures may appear neutral on the surface, they have a disproportionate effect on certain employees. An example is the practice of always scheduling client meetings at dinner when many parents with small children will have childcare commitments, as opposed to at lunch, when it may be easier for employees with young children to attend.

For a time, the law appeared to only
prohibit discrimination on the basis of
family status when there was serious
interference with a substantial parental
or other family duty or obligation. More recently, however, parents of
young children have successfully
advanced claims when employers fail
to accommodate regular child care
requirements to the point of undue
hardship.

Accommodating care-giving needs is usually not burdensome or costly for employers. It is often a matter of flexibility. Flexible working hours,
working from home and careful scheduling of meetings and events can go a long way to avoiding issues with regard to family status. Further, employees (even parents) are not entitled to perfect accommodation: they are entitled to accommodation they need for their actual family status situation, not to design the hours or responsibilities of the dream job they want. Child care arrangements can typically be accommodated by an employer being flexible.

I have always adopted this simple rule: would I have wanted my parents to have been treated that way when I
was young?

Chris Rootham is a partner at the law firm of Nelligan O’Brien Payne LLP in Ottawa (www.nelligan.ca). Chris practices in the Employment Law and Labour Law Groups and can be reached at christopher.rootham@nelligan.ca.

[This article is reprinted with permission and originally appeared in the November/December 2013 edition of Ottawa Life Magazine.]

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.

Service: Employment Law