The growing number of dual-income families with young children and ageing parents has led to a corresponding increase in the number of accommodation requests relating to childcare and eldercare. Determining whether an employer’s denial of such a request constitutes prima facie discrimination on the basis of family status has bedeviled adjudicators, resulting in various “tests” being enunciated across Canada. While some scholars and adjudicators have suggested that these “tests” are inconsistent with the test set out by the Supreme Court of Canada in Moore v. British Columbia and place a uniquely high burden on claimants to establish prima facie discrimination, the authors suggest that is not necessarily correct. The existing tests for family status discrimination can be reconciled with the Moore test, through an acknowledgment that they simply inform the necessary analysis to consider at the third stage of the Moore test. All of these tests recognize that there is always a conflict between spending time with family members and spending time at work, which therefore requires a more nuanced approach to determine whether the third stage of the Moore test is met. The authors propose that these tests boil down to a simple question or issue—whether a claimant has the “meaningful choice,” or is “reasonably able,” to comply with both family and work obligations, given the claimant’s unique circumstances and workplace obligations. Finally, the authors argue that the common objections to considering this issue do not provide persuasive reasons for departing from the overall adjudicative consensus.
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Vipond, Melanie and Oliphant, Benjamin.
"Family Status Discrimination: Caregiving and the Prima Facie Case."
Osgoode Hall Law Journal