SPECIAL TO THE GLOBE AND MAIL

THE QUESTION

I am working from home during the pandemic, but I have two kids and have to help with virtual schooling and child-care. As a result, my performance at work has slipped. I’m still meeting all my targets. But the rest of my colleagues on my team, who are all child-free, are doing better than I am. I recently found out that everyone on my team got a pay raise except for me. Do I have any recourse? Could this be grounds for discrimination?

THE FIRST ANSWER

Whitney D. Manfro, lawyer, Taylor Janis LLP, Calgary

This is a scenario a lot of us know all too well right now. Not only are we all trying to survive, but many of us, like you, are also juggling unavoidable child-care obligations on top of our full-time workloads. Then, to potentially be denied a raise because of those child-care obligations, well that would be hard to stomach.

It is possible your employer has discriminated against you based on the protected human-rights ground of “family status,” owing to you being in a parent and child relationship; however, context is highly important. It would be relevant whether you had sought out alternate child care, to establish whether the care was indeed a need and not a preference (which may be complicated by the pandemic). It is also relevant whether your employer knew about your child-care obligations in the first place, and whether the evidence shows that your family status was factored into the company’s decision to singularly deny you a raise.

If you have indeed been denied a raise because you are required to care for a child, you may be able to seek the compensation you would have been entitled to receive had you not been discriminated against, as well as general damages for the breach of your human rights.

Before speaking to human resources, it may be worthwhile to speak with an employment lawyer. If more information is needed, they can assist you with ghostwriting any e-mails to your managers, before they have their backs up.

THE SECOND ANSWER

Nadia Halum Arauz, associate, Whitten & Lublin Employment Lawyers, Toronto

All Canadian provinces and territories have human-rights legislation that prohibits discrimination on the basis of family status. This means that every employee has a right to equal treatment without discrimination because of family status, which is typically defined as being in a “parent-child” relationship.

If the reason why an employee is being treated differently than their peers is related to their status as a parent, this may be grounds for discrimination. If the salary raise was scheduled, and the only employee to not receive the raise is a parent, that may support a finding of discrimination. However, if there are pre-existing factors that determine eligibility for a salary raise, or in the case of an unprecedented salary raise, the employer is able to show that it applied objective parameters in deciding eligibility, this will likely defeat a discrimination complaint.

However, the employer must be wary of the concept of “adverse discrimination” which occurs where an employer applies a policy that on its face, treats everyone equally, but actually has an adverse effect on a protected group (such as parents, in this case). For example, if one of the criteria for a pay raise is that employees must report to work at 8:30 a.m. each day, while such a criteria is both objective and seemingly neutral, it may have an adverse impact on an employee who is working the same amount of hours as their peers but is unable to start their day at 8:30 a.m. owing to child-care obligations.

In conclusion, the answer depends on the history of salary raises at the employer, what factors the employer took into consideration when deciding on eligibility for the pay raise, and whether these factors are objective and not inadvertently discriminatory toward parents or any other protected group.