Is Requiring Single Parent to Work Night Shift Family Status Discrimination?

by Ralph Nero and Ida Martin

Can an employer require a single parent to start occasionally working the night shift? A recent board of arbitration decision out of Alberta answered — yes. This Alberta decision is the latest in our coverage of decisions wrestling with the workplace application of discrimination on the basis of family status. (We also have reported on the Falardeau decision, and the Power Stream decisions. See our posts titled To What Extent Must Employees’ Family Obligations Be Accommodated and What Happens When Child Care and Work Conflict — More Guidance for Employers.)

Judges, employment standards officers, arbitrators, and human rights tribunal members are all struggling to define what constitutes “discrimination on the basis of family status.” At the moment, the decisions in this area are not completely consistent. But we are beginning to see a framework emerge as to how to analyze these cases.

Let’s turn to the decision behind this week’s article — a grievance arbitration out of Alberta between the Government of Alberta and the Alberta Union of Provincial Employees.

Facts
In this case, a single mother of a healthy 11-year-old boy grieved having to work the night shift, as she claimed that working the night shift interfered with her child care duties. The grievor had been working mornings and afternoons at the Fort Saskatchewan Correctional Centre for four years when her schedule changed requiring her to work approximately 30 night shifts a year.

She claimed that it was difficult to arrange night time care for her son. In part, this was because her ex-husband, a nurse, also worked the night shift. So he was often not available. Her parents were sometimes able to supervise the child but not always. Another option was to have the child stay at a relative’s house. But the mother and child found this disruptive.

Discrimination on the basis of family status
In order to decide the grievance on the merits, the arbitration board first examined whether the employee had established a prima facie case of discrimination on the basis of family status. If the employee hadn’t been discriminated against, then there would be no entitlement to accommodation. The arbitration board undertook a lengthy review of the case law regarding discrimination on the basis of family status. From this review, the board concluded that family status discrimination claims based on parental obligations involve a careful assessment both of the parental obligation and the degree of interference with this obligation as a result of a bona fide work requirement.

The board stated that “part of any examination of whether a prima facie case has been established for family status discrimination must therefore include an analysis of the steps taken by the employee him or herself to balance their family and work life responsibilities.” Further, the board declared that “in the case of family status, an employee . . . bears the onus of providing sufficient evidence of the absence of reasonable alternatives for care.”

The arbitration board decided that the employee had not met this onus of proof and had not established that reasonable alternatives for night-time care, such as arranging for the child to sleep at a relative’s house or hiring someone to stay with the child, were unavailable. The board therefore dismissed the grievance.  Since a prima facie case of discrimination on the basis of family status hadn’t been established, the board didn’t need to address the extent of the employer’s accommodation obligation.

Takeaway for employers
Overall, this decision is helpful to employers. The decision articulates clearly that there is an onus on the person alleging discrimination on the basis of family status to show that there weren’t any other reasonable alternatives for care. As articulated in our previous posts on this topic, however, employers should proceed cautiously when dealing with conflicts between employees’ family obligations and workplace requirements.

Particularly where the employee’s family responsibilities are unique and there are no reasonable alternatives for the employee to meet his or her responsibilities, a decision maker could find that the employer is obliged to accommodate the employee.