Controversy over the proper test for finding discrimination on the basis of family status continues. The main contenders are
- a change imposed by the employer causing serious interference with a substantial duty (the Campbell River test); and
- any adverse effect (the Johnstone test).
To compare the difference in practical terms, consider childcare obligations. The first test will create a duty to accommodate only when an employee has a child with some special need which requires the personal involvement of the employee. The second test creates a duty to accommodate any parent who has any kind of childcare responsibility.
The first test has been criticized as too narrow and as turning family status discrimination into a second class ground of discrimination. It is also criticized for requiring a “change imposed by the employer” when the problem might arise because of a change in family status – for example, the birth of a child with a disability.
The second test has been criticized as much too broad and as forcing employers to accommodate all the personal family status choices of its employees.
Many adjudicators are looking for a middle ground. It has been noted that the Johnstone case and others like it have only found family status discrimination after a careful review of the family obligation and the alternatives available. In effect, most cases followed that part of the Campbell River test which requires “a serious interference with a substantial obligation”. Only in a small number of cases has any adverse effect from an employment obligation been found to create a duty to accommodate any family obligation.
In one recent case, these issues were explored and an “amalgam” of the two tests was noted:
… Arbitrator Jesin developed an amalgam of the two tests. He criticized the Johnstone test as being too broad. … employment obligations and family obligations are often in conflict. However, he accepted that most changes would originate in the family, rather than from an employer rule. Arbitrator Jesin’s test for a prima facie case is therefore that there be a “serious interference with a substantial parental obligation”.
In essence, the amalgam is the Campbell River test without the requirement that the problem arise from a change or rule of the employer. It seems a practical and pragmatic way forward that we hope will be adopted by other adjudicators.
[Customs and Immigration Union (2011), 205 L.A.C. (4th) 343 (Allen)]