Broadening the Scope of Family Status Discrimination: The Gibraltar Mines Case
On April 21st, 2023, the British Columbia Court of Appeal delivered a significant ruling in the case of British Columbia (Human Rights Tribunal) v Gibraltar Mines Ltd. The Court, consisting of five judges, reviewed the criteria for determining family status discrimination under the Human Rights Code in British Columbia (the “Code”). This decision is noteworthy as it brings both positive and negative outcomes, with the threshold lowered for proving family status discrimination in employment in British Columbia.
INTRODUCTION – FAMILY STATUS DISCRIMINATION
In a recent decision, the British Columbia Court of Appeal addressed the requirements for establishing a case of family status discrimination in the workplace. The decision sheds light on the interpretation of the law concerning family status discrimination. This blog post aims to provide an overview of the decision and its implications for employers and employees in British Columbia.
Lisa Harvey, an employee of Gibraltar Mines Ltd., returned from maternity leave in 2017 and requested adjustments to her work schedule to accommodate her family’s childcare needs. She and her husband worked the same 12-hour shifts at the Mine and requested accommodations to one of their schedules to access childcare. Their initial request included one parent being permitted to work 8-hour shifts on a day rotation rather than a 12-hour shift. The second proposal was to have one of them work only the dayshift from Monday to Friday. Gibraltar Mines refused these requests and offered the alternative of one working opposite of the other’s shift. Ms. Harvey and her husband rejected this offer. After further rejected proposals, Ms. Harvey filed a human rights complaint against Gibraltar Mines, alleging she was denied adequate accommodation and faced discrimination based on various protected grounds, including family status.
BC HUMAN RIGHTS TRIBUNAL
Ms. Harvey filed a complaint on the grounds that Gibraltar Mines was discriminating based on her family status, marital status, and sex under section 13 of the Code. Gibraltar Mines applied to dismiss the complaint, and the Tribunal did so based on sex and marital status but declined to dismiss the family status complaint.
The BC Human Rights Tribunal allowed the claim of family status discrimination to proceed in its decision titled Harvey v Gibraltar Mines Ltd. (No. 2), 2020 BCHRT 193. The Tribunal held that even in the absence of a unilateral change to an employee’s terms of employment, a “serious interference” with a substantial parental or family duty could establish a basis for accommodation based on family status. The Tribunal declined to dismiss the complaint because Ms. Harvey did not prove that Gibraltar changed a term or condition of her employment.
BC SUPREME COURT DECISION
Gibraltar Mines sought judicial review of the Tribunal’s decision at the BC Supreme Court, establishing two arguments. First, a precondition for family status discrimination should be a change in the terms and conditions of employment. Second, Gibraltar contended that the Tribunal had demonstrated an unreasonable exercise of discretion by choosing not to dismiss the complaint section related to family status discrimination. The BC Supreme Court agreed with Gibraltar Mines, stating that a change in employment terms was required to establish a finding of discrimination, meaning that the Tribunal had applied the wrong legal test.
COURT OF APPEAL DECISION
However, the British Columbia Court of Appeal took a different stance. In its decision on Gibraltar Mines, the Court of Appeal agreed with the Tribunal, stating that a change in the terms or conditions of employment was not necessary to establish a case of family status discrimination.
The Court held that the reference to “a change in a term or condition of employment” in previous cases should not be considered the sole test. It clarified that family status, including responsibilities for childcare arrangements, could give rise to a claim of discrimination if there was serious interference with substantial parental or family obligations. The Court emphasized that the Code should receive a broad and liberal interpretation to protect employees’ rights.
IMPLICATIONS AND TAKEAWAYS
The Gibraltar Mines case clarifies the requirements for establishing a case of family status discrimination in British Columbia. Employers must know that a change in employment terms is not the only circumstance that triggers discrimination. Instead, serious interference with significant parental or family obligations can also constitute discrimination. Employers should exercise caution when assessing whether they have a duty to accommodate an employee’s family status, even when there is no change to the terms of employment.
The decision from the British Columbia Court of Appeal’s ruling in the Gibraltar Mines case has expanded the scope of family status discrimination in British Columbia’s workplaces. The decision clarifies that a change in employment terms is not the only factor that triggers discrimination emphasizing that serious interference with substantial parental or family obligations can also constitute discrimination. This broad interpretation of the law reinforces the need for employers to consider and accommodate employees’ family status, even without changes to the terms of employment. Overall, the case sets an important precedent for promoting equality and protecting employees’ rights concerning their family responsibilities.