Canada: The Sandwich'ed Employee: Top 5 Employer FAQs About "Family Status" Discrimination

Last Updated: September 28 2017
Article by Lucie LaBoissonnière

More and more employees are finding themselves in the "sandwich generation", squeezed between childcare on one side, and eldercare on the other. And that squeeze extends to their employers:

The increase in employees struggling to juggle the competing demands of their employers and those of their families has resulted in an increase in family status discrimination claims, forcing courts and arbitrators to balance the needs of sandwiched employees against freedom of contract and the needs of employers. Yet the legal test for family status discrimination in employment is a moving target.

Here are the answers to five of employers' most frequently asked questions about workplace discrimination on the basis of family status.

  1. What is "family status"?

 "Family status" is a protected ground under human rights laws of all Canadian provinces and territories (N.B. added "family status", as well as "gender identity or expression", as a protected ground under the N.B. Human Rights Act in May 2017; Quebec's "civil status" encompasses any form of family ties or affinity with another person) and federally. However, some don't define "family status" at all, for example N.B. and B.C. When they do, the definition varies (between provinces for provincially-regulated employers, and federally for federally-regulated employers). For example, human rights legislation in P.E.I. and Ontario define "family status" as, "the status of being in a parent and child relationship"; that of N.L. defines it expansively as, "the status of being in a parent and child relationship and ... "child" includes a stepchild and an adopted child and "parent" includes a step-parent and an adoptive parent". Employers should look to the specific legislation in the provinces in which they operate for the specific requirements when developing policies and making decisions regarding accommodation.

  1. What does the "family status" ground protect?

This is a developing area, so the scope of the protection of "family status" is evolving. However, it seems clear it includes the protection of both childcare and eldercare obligations:

Childcare Obligations. Courts and arbitrators have confirmed that the prohibited ground of discrimination based on "family status" includes discrimination based on a parent's childcare obligations, so an employer is prohibited from discriminating against an employee based on their childcare obligations.

Parent or "Eldercare" Obligations.  Similarly, those decisions dealing with "family status" discrimination in the context of eldercare confirm that care of a parent is also protected under "family status".

How a Family is Formed. Human rights legislation doesn't necessarily make what constitutes a "parent" clear, and thus whether "family status" under human rights legislation includes how someone became a parent. However, at least one decision suggests it does. In Adekayode v. Halifax (Regional Municipality), a collective agreement gave adoptive, but not biological, parents a top-up when they went on parental leave. The employee, a biological parent, was denied top-up benefits and lodged a human rights complaint alleging discrimination on the basis of family status. The N.S. Human Rights Commission Board of Inquiry agreed, deciding "family status" under the N.S. human rights legislation includes the nature of the parent/child relationship.   

  1. What's the test for discrimination on the basis of family status?

Until recently, the test employees must meet to succeed in a discrimination claim based on "family status" resulting from childcare obligations, and in turn the aspects of such care employers must accommodate, seemed clear. However, two recent decisions of the Ontario Human Rights Tribunal have thrown that into doubt.

In 2014 and 2015, two federal court of appeal decisions (Canada (Attorney General) v. Johnstone and Canadian National Railway Company v. Seeley) and one Ontario Court of Appeal decision (Partridge v. Botony Dental Corporation) set out and applied a four-part test employees must meet to succeed in a family status discrimination claim in the context of childcare:  

  • Care and supervision.  The employee must prove a child is actually under their care or supervision such that their failure to meet the child's needs will engage the employee's legal responsibility.
  • Legal Responsibility. The employee must prove that the child isn't of an age where they can reasonably be expected to care for themself during the parent's work hours, and that the childcare need flows from a legal obligation, as opposed to personal family choices. Thus not all family commitments necessarily trigger the employer's duty to accommodate; for example, it's not triggered by requests like: a transfer to be closer to family, attending a child's events or voluntary activities, or to spend more time with children when there's an alternate childcare arrangement.
  • Reasonable Efforts.The employee has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and none is reasonably accessible: neither they nor the other parent (or guardian) can meet their legal childcare obligations while continuing to work, and an alternative arrangement isn't reasonably accessible to them such to meet their work needs.
  • Non-trivial Interference.The workplace rule at issue interferes with the fulfillment of the childcare obligation in more than trivial or insubstantial way.

At that point, there hadn't been a decision dealing with family status discrimination complaint in the context of an employee's eldercare obligations. But this – and potentially the test – changed in 2017: two Ontario Human Rights Tribunal decisions, Misetich v. Value Village Stores Inc. and subsequently Ananda v. Humber College Institute of Technology & Advanced Learning, dealt with that issue – and flat-out rejected the notion that the test for establishing discrimination on the basis of family status differs from the test in the case of any other protected ground for several reasons, including:

  • The test's "legal obligation" element is hard to apply in the context of eldercare.
  • The test also sets the bar higher than that for other discrimination grounds, such as the requirement to prove the complainant's "legal obligation" is engaged, and to demonstrate "self-accomod[ation]" (which also conflates the tests for discrimination and accommodation).
  • A different test for family status discrimination creates legal inconsistency and uncertainty. 

Instead, the Tribunal decided the test to establish discrimination is the same for every protected ground – including family status: the complainant must prove: membership in a protected group under the human rights legislation; adverse treatment; and their membership in the group was a factor in that adverse treatment. The Tribunal went on to set out the applicable analysis for family status discrimination in employment:

  • "Real Disadvantage". The employee must prove the negative impact on a family need results in "real disadvantage" to the parent/child relationship and attendant responsibilities, and/or to the employee's work (and reiterating the requirement it enunciated in its 2012 decision in Devaney v. ZRV Holdings Limited).
  • Context. Assessment of the impact is contextual, and might include other supports available to the complainant – but not whether they can "self-accommodate".
  • Accommodation & Cooperation. If the complainant proves discrimination, the burden shifts to the employer to prove it can't accommodate the employee to the point of undue hardship. The employee's co-operation, including providing the employer with information about their family needs and collaboration on solutions, is part of this stage. 

Notably, in both cases, the Tribunal concluded the employee had not proven discrimination on the basis of family status.

The resulting divide between a human rights tribunal and two courts is a theoretically interesting legal debate – but leaves employers in a practical quandary: what's the test? It's likely this question will take some time to settle. In the meantime, employers might be well-served by taking a conservative approach to family status accommodation requests.  

  1. What are the penalties for discriminating on the basis of "family status"? 

The role of human rights tribunals is to remedy a case of discrimination, and they have broad authority to fashion a solution that's appropriate to make the complainant employee "whole". For example, human rights tribunals can do one or more of the following:

Monetary. Make monetary awards to employees to compensate them for the distress and humiliation of being discriminated against and to compensate them for any loss of income that resulted from the discrimination. 

Cease & Rectify. Require employers to stop the discriminatory conduct and rectify the discrimination against the employee generally, or in a particular way, like granting the employee a particular accommodation. 

Act. Require employers to implement training, policies or procedures to address the discriminatory conduct. 

The remedy the N.S. Human Rights Tribunal Board of Inquiry fashioned in a 2015 decision concluding family status includes how a family is formed (Adekayode v. Halifax (Regional Municipality) illustrates the breadth of a human rights tribunal's powers to make an employee whole. The Tribunal concluded the employer discriminated against the employee on the basis of family status when it gave top-up benefits for parental leave to adoptive parents but denied them to biological parents, depriving the employee of money and time with his child – and awarded him a paid parental leave with top-up even though the child was no longer an infant. 

  1. How do employers accommodate "family status"?

Given "family status" is a protected ground, the employer has a duty to accommodate. But the question is how far does the accommodation duty extend? There's no "standard" answer to requests for accommodation on the basis of "family status" (or on any other basis). As with any request for accommodation of any ground protected under human rights laws, employers must consider each individually and, where appropriate, accommodate the employee to the point of undue hardship.

The general guidelines applicable to all accommodation requests also apply to those based on family status, and will help employers understand their rights and obligations:

Two-Way Street. Accommodation requests come up as a result of employer-initiated workplace changes, or changes to the personal circumstances of an employee or their family. An employer considering changing its operations should consider how those changes might impact its workforce and, where possible, give employees advance notice of any changes so they have the opportunity to make necessary arrangements or adjustments.

The Right to Know. On the flip side, as in all accommodation requests, the employee has a duty to cooperate in the accommodation process. In the context of family status, this includes sharing information with the employer about the relevant needs to allow the employer to identify – and assess – potential accommodation options and working cooperatively to find a reasonable (not a perfect) accommodation solution.

Living Tree. The duty to accommodate isn't limitless, but it is an ongoing process. The accommodation obligation begins when an employer is, or ought to be, aware of the need for accommodation, and might take many forms as an employee's family status and attendant obligations evolve over time. The duty to accommodate only ends when the employment relationship ends, or the employer can establish that its accommodation efforts have reached the point of undue hardship.

One Size Does Not Fit All. Even if an employer has standardized procedures for evaluating requests and implementing accommodation, it ought not have standardized solutions: employers must consider the individual circumstances of the employee requesting accommodation and work with that employee to determine an accommodation that's appropriate in the particular case.

Write it Down. Keeping thorough and accurate records of the entire accommodation process, including the employee's and the employer's steps, is important as an employee's accommodation needs evolve and, if necessary, can provide evidence in response to a human rights complaint for failure to accommodate.

Practically, in the case of accommodation on the basis of family status, practically, a worksite transfer or scheduling modifications often adequately addresses the request. For example:

  • Changing an employee's existing schedule.
  • Maintaining an employee's existing schedule.
  • Allowing the employee to work specific shifts (e.g., only days, only nights, only mornings, and so on).
  • Limiting the number of hours an employee works in a day.

This is an update of our article, The Sandwich Generation: 5 Employer FAQs About "Family Status" Accommodation, published on October 6, 2015.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Practice Guides
by Mondaq Advice Centres
Relevancy Powered by MondaqAI
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions