Shift Changes may Impact on Childcare Arrangements but that is not Discriminatory

In Ziegler v. Pacific Blue Cross (No. 2), 2020 BCHRT 125, the BC Human Rights Tribunal (Tribunal) determined that Pacific Blue Cross (PBC) did not discriminate against Ms. Ziegler on the basis of family status when it imposed a change to her work schedule that impacted on her childcare arrangements.  The Tribunal dismissed the complaint.

Facts

Ms. Ziegler was employed by PBC, a unionized workplace in Burnaby. At the time the complaint was made, she had a one-year child who was enrolled in a daycare near her home in Langley. 

Before Ms. Ziegler went on maternity leave, she worked a fixed shift that ended at 4:30 pm. When she returned to work after maternity leave, she was told that her prior fixed shift schedule would be replaced with a rotating shift schedule, that required her to work until 5:00 pm one week per month. Based on this new schedule, Ms. Ziegler was unable to pick up her child from daycare before it closed at 6:00 pm.  Her husband was also unable to pick up their son from daycare. 

On January 9, 2017, Ms. Ziegler informed a PBC supervisor and the Union President that she would not be able to work the closing shifts due to a conflict with the daycare pick-up time. However, PBC informed her that she would not be allowed to switch shifts, because if they accommodated her, they would have to accommodate others.  As a possible solution, PBC suggested that she look into daycares closer to work.

Ms. Ziegler never looked into any solutions to her childcare issues. Ms. Ziegler felt it was unreasonable for PBC to expect her to change her daycare given the lengthy waitlists. In addition, Ms. Ziegler was not prepared to consider a non-corporate, home-based daycare as a possible solution, since she only trusted corporate daycares.  Instead, she secured alternate employment and received an offer with another company located closer to her home on January 17, 2017.  On the same day she received the offer, she applied for a Voluntary Separation Program payment from PBC, which would allow her to apply to terminate her employment and receive severance. However, her application was denied.

On January 18, 2017, PBC provided Ms. Ziegler with an extension until February 27, 2017 to give her time to resolve her childcare issues so she would be able to work the revised schedule. However, she did not utilize this time to resolve the issue, since she had already secured a new job.

Since PBC was not prepared to return Ms. Ziegler to her previous shifts, she claimed she was discriminated against contrary to Section 13 of the BC Human Rights Code (Code) on the basis of family status.

Issue

Did PBC change a term or condition of Ms. Ziegler’s employment that seriously interfered with a substantial parental duty or obligation?

Legal test/Analysis

Section 13 of the Code prohibits discrimination regarding employment or any term or condition of employment.  Under the Campbell River & North Island Transition Society v. H.S.A.B.C., 2004 BCCA 260 (Campbell River) test, a prima facie case of family status discrimination is made out when the complainant demonstrates:

1. there was a change in a term or condition of their employment imposed by their employer; and
2. the change seriously interfered with a substantial parental or other family duty or obligation.

This test was recently confirmed by the British Columbia Court of Appeal in Envirocon Environmental Services, ULC v. Suen, 2019 BCCA 46.  

With respect to the first element of the test, the Tribunal found for the purpose of the preliminary review of the discrimination analysis, that PBC changed a term or condition of Ms. Ziegler’s employment. In coming to this conclusion, the Tribunal relied on the decision of Campbell River, where the court determined that a change to the schedule of a unionized employee was a change to the employee’s terms and conditions of employment.  In addition, the Tribunal is required to apply a broad and liberal interpretation.

With respect to the second element of the test, the Tribunal determined that the change did not lead to a serious inference with a substantial parental duty or obligation. The Tribunal emphasised that while there is an inevitable tension between work and parental obligations, balancing the demands of employment and finding appropriate childcare is an ordinary parental obligation. “Something more” is necessary to establish discrimination.  The Tribunal went on to say that instead of searching for suitable daycare options that would meet her child’s needs, Ms. Ziegler’s energies went into fighting a battle with PBC and searching for alternate employment.  In particular, Ms. Ziegler was not prepared to consider non-corporate, home-based daycare as a possible solution. The Tribunal stated that while many parents might have the same opinion, the test for discrimination on the basis of family status under the Code makes it clear that more is required. Consequently, the Tribunal dismissed the complaint.

Takeaway

A shift change will not constitute family status discrimination if it only impacts ordinary parental obligations, such as childcare conflicts.   The employee needs to prove the change in schedule is a change to a term or condition of employment and the change caused a “serious interference with a substantial parental or other family duty or obligation”.

This update was co-authored by Scott Marcinkow and Harper Grey articling student, Morgan Barber. Looking for more information on similar topics? Contact Scott at smarcinkow@harpergrey.com or anyone else listed on the authors page.