Clarity on the Test for Discrimination in Relation to Family Status

For a number of years now, there has been ongoing confusion in human rights jurisprudence surrounding the test for discrimination in relation to family status. A recent decision of the Alberta Court of Appeal appears to have settled this issue, providing employers with certainty in this area.

The Alberta Human Rights Act prohibits employers from discriminating on the basis of family status. Discrimination on the basis of family status typically arises in the context of adverse-effect discrimination. Adverse-effect discrimination occurs when an employer seeks to apply a seemingly neutral employment policy to all employees, but the policy inadvertently adversely impacts employees that possess a certain characteristic protected by human rights legislation. For example, imposing a new shift schedule that results in a parent being unable to satisfy his/her child care obligations.

At law, the test for establishing discrimination was settled by the Supreme Court of Canada decision Moore v British Columbia (Education), 2012 SCC 61 (“Moore”). Moore requires a complainant to demonstrate that he/she:

  1. has a characteristic that is protected from discrimination;
  2. has experienced an adverse impact; and
  3. the protected characteristic was a factor in the adverse impact.

(the “Moore Test”)

However, following the Moore decision, the Federal Court of Appeal in Canada (Attorney General) v Johnstone, 2014 FCA 110 (“Johnstone”) imposed a fourth element to the test for establishing discrimination when dealing with issues involving the protected ground of family status. Johnstone indicates that in addition to the three requirements set out in the Moore Test, it “is only if the employee has sought out reasonable alternative childcare arrangements unsuccessfully, and remains unable to fulfill his or her parental obligations, that a prima facie case of discrimination will be made out.”[1]

As a result of this conflicting jurisprudence, decision makers have grappled with whether or not the test for prima facie discrimination in relation to family status includes this fourth element, that being that the complainant must demonstrate that he/she made reasonable attempts to self-accommodate, without success.

This confusion is evident in the decisions leading up to the Alberta Court of Appeal’s recent decision, United Nurses of Alberta v Alberta Health Services, 2021 ABCA 194, which provides the long-needed clarity on the proper test for discrimination on the basis of family status.

In United Nurses of Alberta v Alberta Health Services, the Grievor was a registered nurse working full-time with Alberta Health Services (“AHS”). Originally, the Grievor worked the required shift rotation of four on, followed by four days off. The Grievor, who is the mother of two infant children, was able to coordinate childcare around these shift obligations. However, two years after the Grievor commenced employment with AHS, it was announced that a new shift rotation would be coming into effect. The inconsistent nature of this new shift work would mean that the Grievor and her husband would require 24-hour childcare, a requirement that was financially and logistically unfeasible. The Grievor requested to maintain her existing shifts, which AHS refused. Accordingly, her union, the United Nurses of Alberta (“UNA”) filed a Grievance on her behalf, alleging that AHS failed to accommodate the Grievor.

The matter proceeded to arbitration, where the arbitration board followed the analysis in the Johnstone decision. As a result, the Board concluded that the Grievor had not satisfied the element of “self-accommodation” and dismissed the Grievance.

UNA filed a judicial review of the Board’s decision before the Alberta Court of King's Bench. The Alberta Court of King's  Bench concluded that the Board had deviated from the Supreme Court of Canada’s jurisprudence and indicated that the Moore Test “leaves no room for an articulation of the prima facie discrimination test that imports or adds an additional evidentiary requirement on a complainant. The analysis of self-accommodation is not irrelevant – it just belongs elsewhere”[2].

AHS appealed the Alberta Court of King's Bench decision but was unsuccessful. The Alberta Court of Appeal thereby definitively confirmed that the proper test for discrimination in the context of family status is the Moore Test and confirmed that “importing an additional requirement into the test for prima facie discrimination in family status cases”[3] is incorrect.

The Court of Appeal explained that “Johnstone unacceptably conflates prima facie discrimination which is determined at the first stage of the test, with that of duty to accommodate which is determined only at the second justification stage.”[4] This decision has set the record straight stating that “Johnstone and like cases importing a fourth requirement of self-accommodation into the Moore test for prima facie discrimination are wrong, and inappropriately hold family status claimants to a higher standard than other kinds of discrimination.”[5]

So what does this mean for employers? It means that the test for family status discrimination is the same as for any other form of discrimination, the three-part Moore Test. Employers are not able to combat an employee’s claim for discrimination on the basis of family status where there is insufficient evidence that the employee attempted to remedy the adverse-effect. However, this decision does not mean that employees have no obligation to self-accommodate, it just means that failure to self-accommodate does not form part of the test for establishing discrimination.

Once it has been established that an employee has been discriminated against, the analysis turns to the “bona fide occupational requirement/duty to accommodate justification stage.”[6] It is at this juncture an employer can point to a lack of reasonable participation in the accommodation process to erode an employee’s discrimination claim.

This decision serves as a useful reminder that employers should be careful to refuse accommodation requests when the employer believes that the employee has not taken reasonable steps to reconcile his/her family and work obligations. It is important to approach each case with an open mind and conduct an individualized assessment on how a workplace requirement is impacting an employee’s family obligations, what solutions might available, and what impact those solutions will have on the workplace.

Most importantly, this decision has definitively confirmed that, in Alberta, the test for discrimination in relation to family status is the three-part Moore Test.

[1] Johnstone at para 88.

[2] United Nurses of Alberta v Alberta Health Services at para 45.

[3] Ibid at para 61.

[4] Ibid at para 71.

[5] Ibid at para 99.

[6] Ibid at para 97.