'Family Status' Discrimination: New Tool for Transforming Workplaces, or Trojan Horse for Subverting Gender Equality?

Abstract

This paper examines a Canadian experiment in addressing work/family conflict – the use of human rights codes to prohibit discrimination in employment based on “family status”. The author argues that this experiment has radical potential to disturb the traditional boundaries between work and family that have played so fundamental a role in organizing work and social life under industrial capitalism. The paper analyses the legislative and jurisprudential history of Canadian prohibitions against discrimination on the basis of family status. It then examines recent lines of family status cases in which adjudicators have attempted to give meaning to code prohibitions while at the same time leaving intact management’s historic right to organize the workplace without regard to workers’ family care obligations. The author analyzes the legal tests which have evolved to date for establishing a prima facie case for family status discrimination. She argues that the emergence of high prima facie thresholds for family status discrimination reflects intense pressure from employers to avoid being forced to account for the impact of their employment practices on employee family life under the Meiorin test and the duty to accommodate. She warns that the radical potential of family status discrimination claims may fuel a jurisprudential backlash of which we are already seeing the beginnings in Canadian courts and tribunals, in which O’Malley’s time-tested ‘bare-bones’ approach to prima facie discrimination has been eroded by tests which require proof that the adverse impact of a challenged work rule is arbitrary, or based on stereotyping or prejudice, before that impact triggers a duty to accommodate. She identifies the Seeley/CN and Johnstone/CBSA cases up-coming in the Federal Court of Appeal as important tests of the future direction of family status litigation in Canada.