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nine to five
The question

I am starting a job that has day and evening shifts. I am hoping to get as many day shifts as possible so I can have evenings free for social time with friends and family. However, I was told that parents get first priority for day shifts. I understand some evening shifts are required, but it seems unfair that parents get first priority for the day shifts. Is this legally allowed?

The first answer

Waheeda Ekhlas Smith, barrister and solicitor, Smith Employment Law, Toronto

Preferential treatment on its face is not permissible.

However, under the Ontario Human Rights Code, an employer cannot discriminate against and has the duty to accommodate employees with special needs. Employees can request accommodation related to a number of code-protected grounds including family status. Often, when employees seek accommodation on the basis of family status, it is because of caregiving responsibilities.

In your situation, by providing special consideration to parents, your employer is probably seeking to fulfill its duty to accommodate, as parents likely do not automatically receive the day shifts. What is not apparent is whether the person being provided the day shift as “first priority” had to first request the accommodation from the employer, explaining why he or she needed it and provided supporting information. The employee would also have had to show that he or she made sufficient efforts to find reasonable alternative solutions before the employer’s duty to accommodate was triggered. The employer then would try to accommodate the employee to the point of undue hardship, with business needs in mind. This accommodation could mean allowing alternative work arrangements, flexible scheduling or, as in this case, priority for day shifts.

Simply put, an employer is obligated to accommodate special needs including those pertaining to family status, but is not obligated to accommodate personal preferences. If you personally require accommodation to be on day shifts on grounds such as disability, marital status, sex, sexual orientation, race, colour, ancestry, religion and/or age, then you too can lawfully request accommodation in your employment.

The second answer

George Huang, counsel, DBH Law, Calgary

Life can feel unfair for singles compared with those who have families. From the limited facts, it appears that the employer is trying to give preference to employees with families so they can spend more nights at home with their family at the expense of single employees. In Alberta, the Alberta Human Rights Act protects singles as well as those with families from discrimination depending on the circumstances.

In a 2018 case, the Human Rights Tribunal of Alberta found that an employer was in breach of the Alberta Human Rights Act because the employer chose to lay off the complainant, with some evidence discriminating against his single status as well as a physical disability. The tribunal found that the employer’s discrimination contravened the act. The employee complainant was later awarded damages, which included damages for lost wages and injury to dignity.

Based on the facts, it would appear there is initial evidence of your employer discriminating against single employees. If there is discrimination based on family status, the employer needs to show that it is a genuine and sincere requirement of the job. Based on the limited facts, there does not appear to be an explanation, so there is a potential ground for a complaint. I suggest contacting an employment lawyer for legal advice to understand your rights as the next step if this is something you wish to pursue.

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