What are the lessons we can learn? How can we move towards a different world: one where there is public support for child rearing and care giving; one where both men and women are given equal roles and responsibilities; one where care giving requirements don’t fall on people who are already struggling?
CAW Canada
Issues facing workers with caregiving responsibilities have received significant attention from media, government, trade unions and academics in recent years, largely in the form of discussions about ‘work-life balance’ and the downloading of caregiving responsibilities from the community to individual families.
One of the reasons for this increased attention is the significant flux in the relationship of families to the workplace. As has been widely recognized, the nature of the family and of roles within the family has undergone rapid change. There are more and more lone parent and blended families. Demographic shifts have created a growing need for eldercare, which is largely provided by family members. There are more workers who are recent immigrants and are providing care across borders. Women have entered the paid labour force en masse, with a resultant shift in roles, expectations and pressures: approximately 70% of mothers of pre-school children work outside the home.[49] As well, there has been increased recognition of family formations that fall outside traditional definitions, such as common-law or same-sex families.
At the same time, the nature of work itself has been undergoing change. Canadians are, on average, working longer hours. There has been a shift to contingent, part-time and temporary work.[50]
Over the past ten years many workers, and women workers in particular, are living with changes that make it even more difficult to manage both their employment and their caring responsibilities. Paid jobs have tended to intensify, that is they have become more demanding and less secure; paid caring work is under constant pressure to remain exploitative, low paid and precarious; and the needs for unpaid caring work are increasing.
Ontario Federation of Labour (OFL)
Those in minimum wage or contingent work are least likely to have the financial wherewithal or the workplace flexibility to provide care for their families. Even in more secure work, workplace restructuring and increased expectations mean that employees are regularly expected to work overtime, and work evenings and weekends. The Commission heard that those who aren’t seen to go ‘above and beyond’ by working long hours are unlikely to be considered for advancement.
In order to excel at work, the focus needs to be first and foremost on the job, to the exclusion of responsibilities to self and family. Lip service is given to ‘work-life balance’, but the individuals who can sacrifice for the job, are the most likely to succeed with promotions.
Individual
The broader context for these changes is declining or inadequate social supports for caregivers. This has serious repercussions for caregivers. As the Centre for Families, Work and Well-Being (CFWW) points out,
Attention to the level of service available in the community is critical, as this is a large part of the context that frames the experiences of workers and families in Ontario. In some cases, appropriate workplace accommodations are difficult to implement where services/resources simply do not exist (e.g., overnight childcare; midday transition from kindergarten to daycare; affordable home care for ill or disabled family members; accommodation for elders).
In particular, many submissions raised the lack of affordable, quality childcare as a major barrier to parents accessing and maintaining employment. As the OFL pointed out,
Working parents know that good education and care is an essential support to their parenting responsibilities while they are at work. When parents are satisfied with their children’s education and care, they experience less work-life conflict and are likely to miss fewer days at work. When it is not available, parents are stressed, and are looking desperately for solutions.
This has a particularly detrimental impact on the most vulnerable workers, including parents of children with disabilities, individuals from racialized communities, and lone parents:
A factor raised frequently by lone parents involved in my research is the lack of childcare to support the increasing number of jobs which involve part-time shifts and operate out of traditional work hours. While such ‘non-standard’ work is well acknowledged as a likely permanent feature of our global labour market, supportive public policy has not kept pace and non-standard workers are insufficiently remunerated that the private market will emerge to fill these childcare needs. Even for those parents fortunate in having subsidized day care, these centres usually operate from 8am to 6pm.
Professor Lea Caragata
As well, some pointed out that hospital re-structuring, together with the lack of home care and access to affordable nursing homes has meant that families are increasingly responsible for intensive caregiving for elders and persons with disabilities, without adequate supports. The Halton Elderly Services Advisory Committee noted that, while there are government subsidies for childcare, there are none for adult day programs that would allow the caregiver of an adult child or aging parent to continue working. There are only very limited employment protections for workers who need to take significant leaves of absences to attend to caregiving needs for elders.
Needing to take time from work to take my mother to doctor’s appointments can be stressful. We need to have caregiver leave available either through our union contract or as a right the same as parental leave for new parents, if our society is expecting us to care for the elderly. As my mother ages, she is now 91, if she needs me more this will become very difficult.
Individual
CAW noted that caregivers for aging elders are frequently left to assemble a patchwork of supports to try and ensure needs are met, and states that,
Informal, unpaid care must not be the norm for people. Female family members cannot be expected to fill in the gaps. We must properly fund and manage our health care system to ensure that the care of our older citizens does not fall onto their families.
Similar points were raised with respect to the lack of community supports for persons with disabilities, such as in-home or respite care.
Some legislative initiatives have been undertaken to address these issues:
However, as is detailed elsewhere, many consultees expressed concern about the limited scope and inflexible requirements of these pieces of legislation. Concerns were also identified with respect to other legislation that has a negative impact on the ability of families to attend to their caregiving responsibilities – the most common examples cited being mandatory overtime, and extensions to permissible hours of work.
In the main, workplace structures and expectations have not adjusted to the changed situation of families. Caregiving responsibilities tend to be viewed as individual “personal problems” rather than as a systemic issue. As one Roundtable participant pointed out, women are changing the structure of their families (for example, by delaying childbirth, “timing” pregnancies around work obligations, and having fewer children) to accommodate work, but work is not changing to accommodate families: work dictates what happens in the home, but the home is not permitted to intrude into work.
Women [academics] report feeling forced to choose between childbearing and aggressively pursuing tenure. Despite maternity and parental leaves, which are ubiquitous on university campuses, women still worry about the consequences of taking maternity leaves and raising small children while pursuing tenure ....The traditional academic career was not created with the female life cycle in mind. As they pursue academic careers, women have been forced to adapt to the traditional career path in terms of tenure and promotion ... As a consequence, many women faculty feel like outsiders in their profession.
Ontario Confederation of University Faculty Associations (OCUFA)
As a result, workers with caregiving responsibilities find themselves in untenable situations – under stress, and unable to give the best of themselves either to their families or to their employment. The long-term social and economic impact of this situation has been recognized in numerous studies.[54]
This situation has systemic implications for the equality of women in the workplace.[55] Because they are more likely to have significant caregiving responsibilities, women find it more difficult to find and keep employment and to advance in their employment. They are more likely to reduce their work hours, or take leaves of absence from work in order to fulfil their caregiving responsibilities. As a result, women have reduced access to pensions and benefits, and experience long-term economic costs.
I was out of the workforce for over 20 years. Once my husband walked out on my family, I had to go back to school to update my skills at 50 years old and am still looking for a fulltime job. After leaving the workforce for 20 years, I have lost the possibility of advancement and promotion, meaning a higher income level, that other women have had at my age. Therefore, financially, it is hard, if not impossible, to pay all of my bills.
Individual
The Commission views these as significant systemic human rights issues. So long as these issues remain unaddressed, persons with familial responsibilities will experience barriers in the workplace. Further, since women continue to perform the bulk of caregiving work in this society, women’s equality in the workplace cannot be addressed in any meaningful way without serious efforts to tackle these issues.
Consultees stressed the central importance of workplace accommodation of caregiving needs to the removal of barriers based on family status. The lack of flexibility and accommodation in many workplaces creates significant difficulty for workers in finding, keeping, and succeeding in their jobs.
Participants in the Employment Roundtable emphasized that this is a particular challenge for vulnerable workers in low-wage, contingent jobs, a type of work in which racialized, newcomer and female employees are disproportionately likely to find themselves. These workers cannot afford to lose their jobs. However, their employers may view them as easily replaceable, so that any absenteeism or request for flexibility can result in job loss. At the same time, they have little access to supports. For example, workers in the retail sector may have extreme difficulty in finding adequate childcare in the evening hours.
Lone mothers face particular difficulties. With reduced financial and social supports, their situation may be precarious. A change in work shift, or a family member’s serious illness may push them out of the workforce.
[T]here are times when work demands are strenuous and if these combine with a child’s illness either work or the family will suffer. In some cases parents make difficult choices to leave a child alone – and may face devastating personal and legal consequences as a result. In other cases, they take care of their children and lose their jobs. We interviewed a [lone] mother of an asthmatic 8-year-old son whom his daycare refused because they were scared by the severity of his illness. The mother had no choice but to ultimately quit a quite good job – her first in 14 years.
Professor Lea Caragata
Some pointed out that stereotypes about gender roles may mean that men may face a particularly harsh and negative reaction when seeking accommodation for caregiving needs. Consultees told the Commission that when men ask for accommodation for family needs, they are often asked, “Why can’t your wife do it?” One male lawyer had this story to tell about his experiences:
When my first son was born, I managed to take 2 or 3 months off (only because I had negotiated this ability at the time of securing employment with the firm). Upon my return I investigated the possibility of a reduced workweek to permit me to stay home a little more and spend more time with my son. Once I had determined this was not a financially viable alternative at that point in my career, I had a discussion with one of the partners who advised me that he was relieved by my decision because, as he put it ‘we tolerate that kind of thing from the women because we have to, but we really don’t expect it from the men’.
This lawyer noted that, later on when he had to take time off to care for his sick child, this was cited on his performance review as evidence that he was not a team player, and he was told that he had to take his career commitments more seriously if he was going to succeed.
Caregiving needs will vary widely from situation to situation, and will vary over the life course of an individual:
It must be understood that either/both workplace and business requirements and family status are likely to change over time, resulting in new/changed expectations for both the employer and the employee. Workplace policies and educational programmes could increase awareness of this fluidity and the importance of considering the employment relationship within a ‘work/life course’ perspective.
CFWW
Needs are also frequently unpredictable.
Caregiving responsibilities often arise unexpectedly and are not possible to plan for. Children get sick and can’t go to school, or must be picked up early due to illness, accident or other reasons. Elderly parents or other people our members care for become ill and sometimes require emergency medical attention. Caregivers hired to look after children or other dependents also get sick and are therefore unable to look after dependents as planned. In such circumstances, our members may be, and have been, in the position of having to unexpectedly care for a dependent person.
Association of Law Officers of the Crown (ALOC)
It should be kept in mind that needs will differ depending on the type of care being provided. For example, eldercare needs are often unpredictable, and frequently arise on an emergency basis. The OFL points out, “Workers with elderly or disabled family members are not always caring for them at home, but they often provide regular phone contact, help with shopping and housework, enable family members to get to appointments and handle emergencies”. On the other hand, needs related to childcare, or for family members with disabilities may require long-term adjustments.
Contrary to the expectations of some employers, accommodation is frequently neither burdensome nor costly: most often it is a matter of flexibility. Very small accommodations can sometimes make an enormous differences to struggling employees – for example, access to a telephone to make and receive occasional emergency personal calls or to check in with a child after school.
The Commission heard that a flexible and accommodating workplace is ultimately to the advantage of employers:
[G]iven the fact that all employers should consider their employees their most valuable resource, as we do, the issue of discrimination on the basis of family status takes its full meaning when one realizes its negative repercussions on the work force. Those include high absenteeism, health problems due to stress and ultimately, losing highly talented and efficient workers who simply decide to devote themselves entirely to their family-related responsibilities and quit working.
The Co-operators
However, some employers and employer groups emphasized the practical difficulties attendant on accommodating for caregiving needs:
[L]egislative requirements can place a burden on employers and, can be quite onerous, especially to small operations. Sometimes they can make the difference as to whether an operation is viable. The accommodation requirements already placed on employers needs to be taken into consideration when new requirements are being examined.
HRPAO
HRPAO indicated that widely predicted skill shortages will bring work/life balance issues to the forefront, and that flexibility and work/life balance may become a best practice for employers striving to attract and retain talented and skilled employees. Others pointed out that these best practices are likely to benefit mainly the most skilled and in-demand employees, and that leaving these issues to employers’ discretion leaves the most vulnerable and needy unprotected. They therefore argued for a strong set of legislated minimum standards:
In a province where most adults are in paid work, the ability to care for dependents should not be a privilege available only to some. It is in everyone’s interest to ‘raise the floor’.
OFL
Some expressed concern about the impact of accommodating those with caregiving responsibilities on other employees. HRPAO stated that, “From a practical, implementation perspective, it is important to note that when there is an accommodation for work/life balance for one group, the work/life balance of another group is being negatively impacted.” Here it is worth noting that similar concerns have been raised in the past regarding the accommodation of workers with disabilities. As the Commission set out in the Policy and Guidelines on Disability and the Duty to Accommodate, the aim of accommodation is to ensure that individuals protected by a Code ground have equal opportunity to attain the same level of performance or to enjoy the same level of benefits and privileges experienced by others, or to ensure equal opportunity.
Section 11 of the Code provides that where a requirement, qualification or factor results in the exclusion, restriction or preference of a group of persons identified by a Code ground (including family status), this requirement violates the Code unless it can be demonstrated that it is reasonable and bona fide in the circumstances, in that the needs of the group cannot be accommodated without undue hardship. Where workplace policies, procedures, or practices have the effect of disadvantaging persons identified by family status, employers therefore have a duty to explore accommodation up to the point of undue hardship.
As there have been very few human rights decisions dealing with workplace discrimination on the basis of family status[56], there was considerable questioning and discussion, both in the submissions and at the Employment Roundtable, about the meaning of the duty to accommodate in the context of family status.
At the Roundtable, it was generally agreed that there is a relatively low level of awareness, among employers, employees and unions, of rights and responsibilities under the Code related to family status. Employers may nonetheless provide accommodations, such as flexible hours, reduced workweeks, or work from home arrangements, but do so as a ‘best practice’, or as part of an effort to address gender equality issues.
Given the relatively low level of awareness around this Code ground, it is not surprising that there were divergences of opinion regarding the content of the duty to accommodate for family status.
The ground of family status raises unique issues, and an understanding of the duty to accommodate for family status must be sensitive to the context. However, the Code does not set out a hierarchy of rights. The duty to accommodate for family status should not be taken any less seriously than it is for other Code grounds; nor should employers be held to a different or lower standard when accommodating for needs associated with family status.
The fundamentals of the Commission’s approach to the duty to accommodate have been set out in the Commission’s policy documents on other Code grounds, most thoroughly in the Policy and Guidelines on Disability and the Duty to Accommodate. The Commission has taken the position that:
There was some discussion of when the duty to accommodate for needs related to family status is triggered. The Canadian Manufacturers & Exporters (CME) emphasized that the employer’s duty to accommodate should only arise “where compelling circumstances prohibit the employee from making the necessary arrangements to provide such care ... an employee ought to be expected to exhaust all possible avenues available to him or her that allow the employee to meet the family responsibilities without impacting the employer’s business. “ However, as some pointed out at the Roundtable, it may be difficult to determine where such ‘compelling circumstances’ exist. As one consultee expressed it, when an exhausted mother of young children requests a reduction in her work hours, it may appear to the employer as a mere preference; in retrospect, when she has resigned, it will appear as a ‘compelling need’.
Consultees emphasized the importance of mutual cooperation and respect in family status accommodations.
Both employees and employers should be made aware of their mutual and respective rights and obligations. .. [E]ach should be considered to have a duty to find and accept reasonable workplace accommodations for family status needs. For example, in the case of childcare arrangements, both the employer and employee have an obligation to consider how workplace needs and children’s needs intersect in ways that reduce an undue burden for either the employer or employee.
CFWW
A number of submissions emphasized the importance of considering the unique aspects of individual needs and the circumstances of particular workplaces in assessing any accommodation request. The CFWW stated, “It is important to recognize that ‘one size fits all solutions’ are not possible, and that there are workplaces where bona fide business requirements enable greater and lesser potential for flexibility in accommodating family status needs”. However, the duty to accommodate applies to all employees: as the CFWW went on to point out “Still, this discussion must apply to all workers – not only those in large companies or specific sectors”.
As with other Code grounds, consideration of the nature of the duty to accommodate for needs associated with family status must take into account the full context, including the larger systemic issues at play, the intersecting aspects of an employee’s identity, and the presence or absence of appropriate outside resources. As many submissions pointed out, so long as family status issues are viewed as individual problems to be solved by individual families alone, no significant progress can be expected.
Consultees identified numerous employment policies and practices that may create barriers for persons with caregiving responsibilities. These are outlined below.
Failure to Recognize Spectrum of Caregiving Needs
Connected with the earlier discussion of the restrictive definition of family status in the Code, many consultees pointed out that even where employers do recognize caregiving needs, this recognition is often limited to a narrow range of relationships – mainly parenting relationships, and sometimes extending to eldercare needs. Other relationships of care and commitment are not recognized or supported. For example, gay and lesbian employees may find that their caregiving needs are invisible to their employers, because of the stereotypical assumptions that are made about them. A gay man said this:
My partner and I were the sole care providers for my mother before she passed away. It was very difficult to find work while needing to care for my mother... When I needed to care for my mother, I missed promotions because I could not re-locate. During the 15 years I was with my partner I missed opportunities because I was not seen as having a family. I had my partner and my mother to think about, but that family was invisible to most in the community.
One of most common accommodation needs for persons with family care responsibilities is time – most particularly, short-term absences from work, to enable them to deal with family illnesses, appointments or emergencies.
Many employers have formal attendance management programs, which subject persons with higher than normal levels of absenteeism to greater levels of scrutiny and potential discipline. A number of studies have shown higher rates of absenteeism for individuals with high levels of work-life conflict.[57] Attendance management programs that do not take into account the needs of persons related to their family status may have a disproportionate impact on persons with caregiving responsibilities.
[A]bsenteeism is extremely costly for employers. Accordingly, it is necessary for employers to be able to manage both culpable and innocent absenteeism for the purpose of attendance management programs. The administration of attendance management programs, however, is always subject to the employer’s duty to accommodate short of undue hardship. In this way, a balance is reached between the employers’ need to run an efficient business and the employee’s human rights.
CME
Some employers have fixed thresholds for absenteeism, and workers who exceed these thresholds are liable to automatic dismissal. Such programs are problematic for persons identified by family status, as well as for persons with disabilities. The Commission has received a number of complaints from individuals with significant caregiving responsibilities who alleged that they were harshly disciplined or dismissed due to inflexible absenteeism thresholds. For example, one individual told the Commission that when she had to take two days off from a new job to care for her child, she was told that she was not a good fit, and was let go.
Many submissions raised concerns about the common practice of providing sick days to employees – but only for their own sickness.[58] The sickness of a family member does not qualify. This places employees whose family members become ill or suddenly need care in a quandary, as no workplace policy entitles them to any time away from work, but their family responsibilities require them to provide care.
Often I have to take vacation for family responsibilities or call in sick. I have a son with autism. I have had to take medical leaves in order to provide care for my son, since work did not consider caregiving for my son a valid reason to take time off work.
Individual
One organization representing professional workers reported that the primary accommodation for unexpected family care giving responsibilities is allowing members to take vacation time on short notice. This strategy, however, disproportionately impacts upon the vacation benefits of members with family care responsibilities. This organization points out that “Vacation days were never intended to be used as an accommodation tool for members to carry out family responsibilities. Dealing with family care issues ... are often very stressful episodes in a person’s life. It is fair to say that during these most stressful periods, members are most in need of their vacation entitlements.”[59]
The Commission heard that persons in low-income, contingent work can least afford to take unpaid time away from work to attend to their family responsibilities.
A single Aboriginal mother whose earnings are already at the poverty line should not be penalized for having to fulfill her role as a mother if she needs to care for a sick child or an elderly parent. This should be a paid absence. If a caregiver is well taken care of and supported by the employer, they will be that much more effective when they return to the workplace. It is the responsibility of the employer within reasonable guidelines to support the inherent role a caregiver has to both their child and parents.
OFIFC
Many consultees raised concerns about the inadequacy of current statutory protections for employees who must take time from work to attend to family care needs, specifically family medical leave and the 10 days of emergency leave provided under the ESA (these legislative provisions are described above). Family medical leave entitlements are set out in the ESA, and the federal Employment Insurance Act provides insurance benefits for qualifying persons who take such leaves. With respect to family medical leave, consultees noted the restrictiveness of the rules:[60]
A number of submissions emphasized the importance of considering the changing demands of work. These days, it is not uncommon for employers to expect their employees to make themselves available to work whatever hours are necessary to complete their tasks and to deal with crisis situations. In times of fiscal restraint, employees may be expected to “do more with less”, taking on greater work demands with fewer resources. Work demands creep further into the personal lives of employees. In non-unionized workplaces, employers may or may not give time in lieu or other compensation for overtime worked, even where employment standards protections apply.
Employment standards legislation, a number of submissions pointed out, puts few restraints on the number of hours that employees may be required to work in a week. The standard maximum hours of work are 8 in a day and 48 in a week; however, these maximums may be exceeded by agreement between the employer and the employee or the employee’s representative, or by application of the employer to the Director. There is no hard weekly maximum, beyond requirements for daily and weekly rest periods between shifts.[63]
The government must be urged to revisit these [hours of work and overtime] provisions and establish a cap on excess overtime hours by law or by permit, and move, as Quebec has, to voluntary overtime and overtime pay after 40 hours in a week.
CAW
Shift work is increasingly common. Some workers use shift work as part of a caregiving plan; for example, where both spouses work for the same employer, they may select different shifts to ensure that one of them is always available to their children. On the other hand, shift work can cause difficulties for caregivers as workers on rotating shifts may have great difficulty finding adequate childcare.
As a registered nurse, the work available to me required shift work: 12 hour shifts. I was unable to find daycare that could accommodate these long, alternating shifts which required me to leave home by 5:45 a.m. and not return home before 9:30 p.m.
Individual
Problems may also arise where workers have little control over changes to shifts: a shift change can pose extreme difficulties in adjusting long-standing family care arrangements. A recent British Columbia Court of Appeal decision found that an employer’s unilateral change to a shift could form a prima facie case of discrimination on the basis of family status.[64] As one employer representative noted, employers often see shift schedules as inviolable. As well, in unionized settings, accommodation with respect to shift work may clash with seniority rights.
Unnecessary employer inflexibility with respect to hours of work was another of the barriers identified. There may be little flexibility for employees to adjust their working hours around caregiving responsibilities. For example, ALOC raised the issue of “core hours coverage” in which at least one lawyer is required to be in the office by 8:00 a.m., often on a rotating basis. ALOC points out that this is incompatible with the standard hours of operation for most daycares, and that the availability of cell phone and other technology should permit greater flexibility on this matter on the part of the employer. One individual consultee told the Commission that:
Requests for accommodation on morning start time have continuously been rejected/resisted even though there is flexibility in assigning work hours. Current policy review is recognizing accommodation in hours for religion, work-related professional training, medical, or client accommodation. Requests for one hour’s morning accommodation continue to be disqualified as ineligible, even after raising the issue of human rights and family status protection.
Because of the lack of caregiving services outside of regular hours, many find it difficult to find or retain work. A single mother told us:
Due to the fact that many jobs for entry level employees ... often require that you work on evenings and/or weekends, because my daughter is only in care during weekdays, this has limited me from applying to certain jobs. Retail, many restaurants, jobs within the film industry (my area of work) and other types of jobs have hours that are very hard for me to maintain because they require me to hire additional care for my daughter.
A ‘culture of hours’ may mean that persons with caregiving responsibilities are viewed as insufficiently committed to their work. The expectation that all employees can stay late as necessary is not only unrealistic, but is the source of difficulty for many employees:
Every mommy and daddy out there with a child in daycare can relate to the stress induced when your workday runs late and you must pick up your child by 6:00 p.m... Having to excuse yourself from meetings, or tell an angry client that you have to go, is definitely career limiting.
Individual
Expectations around after-hours socializing and networking were raised as barriers by some. For example, one individual indicated that, as a single mother of three children, she is not able to attend after work drinking functions, dinners, golfing events and the like, and that she feels this is part of the reason she has been repeatedly passed over for advancement.
Some submissions raised requirements around travel as an issue for employees with caregiving responsibilities. Several individual consultees told the Commission that their career prospects were limited by their inability to commit to regular travel. One submission noted the disproportionately low number of female employees in job classifications requiring regular travel.[65]
The submissions acknowledged that in some jobs, regular travel is an essential duty. Even where travel is an essential duty of the job, however, employers may be able to take steps to recognize and support the family-related needs of employees who are travelling. This might involve recognition of dependent-care expenses that arise as a result of travel, or permitting employees to use company vehicles to drop children off at school or daycare at the start of a day of work-related travel.
Employees with caregiving responsibilities may benefit from alternative work arrangements, such as alternative hours, reduced workweeks, work from home arrangements, or job sharing arrangements. There appears to be a general lack of quality part-time work, or other alternative work arrangements. Relatively few employers appear to have formal policies or programs designed to address the accommodation needs of employees with caregiving responsibilities. These are more likely to exist in unionized workplaces. Where there are no formal policies, employees seeking for flexible work arrangements must rely on ad hoc and discretionary arrangements.[66]
This is problematic. Alternative work arrangements are less likely to be available to those in contingent, low-paying or otherwise marginal work – areas of employment in which newcomers, women and members of racialized communities are disproportionately likely to be found. [67] Even within one workplace, flexibility and accommodation may be available to some employees and not others, based on the personal preferences and opinions of the manager or supervisor.
While many legal managers provide flexibility to accommodate for their caregiving responsibilities, some refuse to make any accommodations or are very reluctant to accommodate. In a few cases, managers have been openly hostile toward family caregiving responsibilities. In one case, a legal manager required a member to bring a sick child to the office. It was only after the child vomited in the office that the manager allowed the member to care for the child at home. But even then, the manager required the member to be available for a lengthy telephone conference call.
ALOC
Further, the fact that these policies and programs are discretionary leave employees vulnerable to having these arrangements withdrawn at any time, whether or not the employee’s needs have changed.
Many workers, particularly women, seek part-time work as a way to manage the competing demands of their work and their family. As OECTA pointed out, this may be in part a response to the lack of other flexible options. Employees may find themselves choosing between part-time work and leaving the workforce altogether. However, part-time workers are likely to receive lower rates of pay, as well as limited or no access to benefits, and diminished job security. As well, a number of submissions noted the difficulties part-time workers face when their need for accommodation is over and they wish to return to the ‘mainstream’.
In other jurisdictions, discrepancies between the treatment of part-time and full-time workers have been the subject of human rights complaints. For example, in a case decided by the European Court of Justice, the differential treatment of the mainly female part-time cleaning staff with respect to calculation of length of service and possibility of appointment to permanent staff was found to be sex discrimination.[68]
Further, the Commission heard that those workers fortunate enough to find part-time work or other alternative work arrangements may then find that they are viewed by their employer as less committed to their work than their co-workers, that their successes are less likely to be recognized, and that they are less likely to be considered for opportunities for advancement or training. The CFWW told the Commission that accommodations can result in employees being considered by employers to be ‘off the career track’. DAWN noted that this is particularly true for parents of children with disabilities. OCUFA stated that:
One of the challenges facing university faculty in achieving work/life balance is the attitude within academia about utilizing such benefits. Some faculty evidently feel that to utilize such benefits to the full would be detrimental to their career.
The Halton Elder Services Advisory Committee emphasized that it is part of the mandate and responsibilities of employers to create an environment where caregivers are not afraid to use strategies to accommodate their caregiving responsibilities.
Among the consequences employees face for accessing caregiving accommodations such as part-time work or leaves of absence, is reduced access to pensions and benefits. Relatively few part-time workers have access to benefits. This has long-term consequences for the economic security of caregivers and, as some submissions pointed out, raises systemic issues.
Aboriginal people who are working part time and have the responsibility of caregiving for either their children or elderly parents do not have access to benefits. Due consideration should be taken into account that this does have adverse impact on family status. Families continue to live in poverty. For example, children are not receiving the necessary care i.e. dentistry or optometry because the caregiver can simply not afford them.
OFIFC
Consultees advocated for reforms to pension and benefit plans to ensure the fair treatment of persons with caregiving responsibilities. For example, part-time, seasonal and temporary workers should have access to employee benefits.[69] Many argued that there should be better protection for employees who leave the workplace to provide caregiving:
Caregivers who leave the workplace to care for family members with disabilities should not be penalized for that period during which they have low or zero earnings. Benefit policies must protect a caregiver’s eligibility for contributory schemes where, for example, the contributor made contributions before the period devoted to caregiving. In short, policies must provide real economic recognition and financial security to caregivers.
ARCH
The Commission also heard that pension and benefits plans could better reflect the diverse make-up of present-day families. For example, many workplace health care plans have narrow definitions of ‘family member’: these should be expanded to include health care benefits to dependent elderly parents.
Private insurance companies that are contracted by employers to provide employee benefits routinely allow the inclusion of only a spouse or a child in an employer provided benefit plan ... Extended family members such as a sibling or others are rarely allowed to be included, even where the employee is willing to pay. For many immigrant families, especially refugees, relatives such as an adult sibling or cousin are often the only family she or he has in Canada. Not including these family members in an employee benefit plan is unfair and discriminatory.
OCASI
Further, the Ontario Pension Benefits Act does not provide a minimum joint survivor benefit for persons who are single or widowed: single parents, and single parents of children with disabilities may experience tremendous uncertainty about their ability to provide for their loved ones in the event of death.
The Commission heard that persons with caregiving responsibilities are the subject of a number of negative perceptions and stereotypes: most especially that they are less capable, and less committed than their colleagues. This limits employment opportunities and career advancement for persons with significant caregiving responsibilities.
People think that just because you have a family you can’t be responsible at work, and you will always put your family before your job. .. No matter where I go, people immediately assume that because you’re a single parent, you will perform poorly.
Individual[T]he perception of a teacher’s dedication to the job may be different when he or she has significant family responsibilities and obligations. The informal promotion track may be denied to those perceived to be on the ‘parent track’. Superordinates may perceive certain employees as not involved enough in the life of the school, such as in extra curricular activities or after-hours functions. This perception can have a negative impact on relationships with colleagues within the school.
OECTA
Persons with caregiving responsibilities may find themselves subtly excluded from the workplace culture. Colleagues may resent accommodations made for those with caregiving needs, or feel that a person who does not socialize after hours is not really ‘part of the team’. Women seeking employment continue to feel that they must hide the fact that they have children or other persons reliant on them for care.
My colleagues are ALWAYS bringing up the fact that I have a large family to care for. I feel so impacted by this that I have not disclosed to my workplace the recent separation between me and my husband and do not plan to, as I believe I will be given less opportunities if they now know I’m a single parent caring for 3 children.
Individual
There has been extensive American litigation regarding workplace discrimination against caregivers, based on gender-related negative attitudes and stereotypes. In one case, a male employee who was seeking to take parental leave was told that his wife would have to be “in a coma or dead” for a man to qualify as a primary caregiver.[70] In another case, an employer refused to consider a mother of two for promotion because of an assumption that she would not be interested in the job, since it involved extensive travel.[71]
As was noted earlier, negative attitudes and stereotypes may make it difficult for employees to request the accommodation they need. Employees may not request accommodation because they know that it will be refused, or worse still, resented. The Commission heard that racism exacerbates this issue, as members of racialized communities are “last hired and first fired” and therefore cannot afford to take time off from work to attend to their family responsibilities, for fear of losing their jobs. As a result, parents who are trying to keep their employment may find themselves obliged to neglect some of their family responsibilities. As well, parents who are gay or lesbian may be reluctant to request accommodation because it can open them up to harassment based on their sexual orientation.
Lack of adequate social supports for families with caregiving responsibilities, together with rigid and non-inclusive workplace structures, creates systemic barriers in the workplace for persons identified by family status. These barriers are reinforced by inadequate legislative provisions with respect to hours of work, overtime, and leaves of absence.
[49] Vanier Institute of the Family, Profiling Canada’s Families II, online: Vanier Institute of the Family <www.vifamily.ca>
[50] R. Saunders, Risk and Opportunity: Creating Options for Vulnerable Workers (Canadian Policy Research Network , 2006) at 9, online at Canadian Policy Research Network <www.cprn.org>
[51] The legislation extends to spouses (including same-sex spouses), children (including step-children and foster children), parents (including step and foster parents), grandparents, siblings, spouses of their children, or any other relatives that are dependent on them for care and assistance.
[52] S. 49.1. At the time of consultation, these protections only extended to those caring for spouses, parents and children. On October 26, 2006, however, the Ministry of Labour announced that, effectively immediately, these protections would be expanded to include a much broader range of relationships, including grandparents, grandchildren, siblings, nieces and nephews, aunts and uncles, spouses of family members, and anyone who the employee considers to be “like a family member”.
[53] Employment Insurance Act, S.C. 1996, c. 23, ss. 12, 23. Prior to June 2006, the eligibility requirements restricted benefits to those caring for spouses, children or parents. The Ontario government has not indicated whether it will amend the parallel provisions of the Employment Standards Act to ensure that caregivers who are eligible for employment insurance benefits will be entitled to take leaves of absence from work to provide such care.
[54] See, for example, D. Cheal, M. Luxton and F. Woolley, How Families Cope and Why Policy-Makers Need to Know (Canadian Policy Research Network, 1998); L. Duxbury et al., An Examination of the Implications and Costs of Work-Life Conflict in Canada (Ottawa: Health Canada, June 1999).
[55] See, for example Fiona M. Kay, Transitions and Turning Points, Women’s Careers in the Legal Profession, A Report to the Law Society of Canada (September 2004) and Joan C. Williams, “Hitting the Maternal Wall”, Academe (November-December 2004).
[56] The leading case is Health Sciences Association of British Columbia v. Campbell River and North Island Transition Society, 2004 BCCA 260, May 10, 2004. This was an appeal from the decision of an arbitrator. The employee in this case was married with four children, the youngest of whom had very severe behavioural problems requiring specific parental and professional attention. She worked for the respondent on a part-time basis, from 8:30 a.m. to 3:00 p.m. Because of program changes, the respondent decided to change her shift to 11:00 a.m. to 6:00 p.m. The grievor was concerned because she needed to attend to her son after school hours. A medical report stated that her son was best served by having his mother care for him after school, noting that he had a major psychiatric disorder, and that his mother’s after-school care was “extraordinarily important” to his prognosis. This information was provided to the employer; however, it did not adjust the grievor’s schedule. The grievor attempted to work the schedule, but went off work after a few weeks, and was diagnosed with post-traumatic stress disorder. The arbitrator concluded that the ground of family status was not intended to capture circumstances such as these, and rejected the claim of the grievor. The Court of Appeal overturned the decision of the arbitrator, and concluded that “a prima facie case of discrimination is made out when a change in a term or condition of employment imposed by an employer results in a serious interference with a substantial parental or other family duty or obligation of the employee”. The Court found that such a prima facie case had been made out in these circumstances.
[57] In one study, employees who reported high rates of work-life conflict were found to be absent from work an average of 13.2 days per year, as compared to 5.9 days per year for those who report low levels of work-life conflict (L. Duxbury et al, An Examination of the Implications and Costs of Work-Life Conflict in Canada, Ottawa: Health Canada, June 1999).
[58] Note that employees who are covered by the ESA and work for employers of over 50 employees may be entitled to limited unpaid emergency leave, as described above.
[59] Submission from ALOC.
[60] ESA s. 49.1 Consultees also raised concerns that the definitions of ‘family member’ in the ESA and the Employment Insurance Act were far too restrictive, and did not include siblings, grandparents, or other relatives dependent on the employee for care or assistance. Both programs now recognize a much broader range of relationships.
[61] ESA s. 50
[62] Similar concerns were brought to the Commission’s attention during its consultation on discrimination against older Ontarians on the basis of age. In its consultation report, A Time for Action, the Commission recommended “That the Ministry of Labour extend the new leave provisions of the Employment Standards Act 2000 to smaller workplaces (including those of less than fifty employees). Supra, note 16
[63] ESA, ss. 17, 17.1
[64] Health Sciences Association of British Columbia v. Campbell River and North Island Transition Society, supra, note 56.
[65] Submission from ALOC.
[66] In other jurisdictions, unreasonable denial of access to alternative work arrangements has been found to be discriminatory. For example, in an interesting Australian case, an employer’s refusal to allow a female employee returning from maternity leave to move to part-time work was found to be sex discrimination, in that an unreasonable denial of part-time work was likely to disadvantage women because of their disproportionate responsibility for the care of children. Escobar v. Rainbow Printing Pty Ltd. (No.2) [2002] FMCA 122
[67] Some American studies have found that racialized employees are less likely to have access to ‘family-friendly’ workplace policies. See Debra B. Schwarz, An Examination of the Impact of Family-Friendly Policies on the Glass Ceiling, Report Prepared for the U.S. Department of Labor, Glass Ceiling Commission (New York: Families and Work Institute, 1994).
[68] Nikoloudi v. Organismos Tilepikoinnoinion Ellads AE , OJ C-106, 30.04.2005, p.1
[69] Expansion of access to pensions would require amendment of the Ontario Pension Benefits Act, which sets out the criteria non-full-time workers must meet in order to be eligible to participate in an employer-sponsored pension plan.
[70] Knussman v. Maryland, (272 F.3d 625 (4th Cir. 2001)
[71] Trezza v. Hartford Inc. No. 98, Civ. 2205, 1998 WL 912101 (S.D.N.Y. Dec. 30, 1998). For a helpful summary of the American caselaw in this area, see The New Glass Ceiling: Mothers and Fathers Sue for Discrimination, produced by Work Life Law at the American University Washington College of Law, November 2002.