Update: Is the Failure to Provide Parental Leave “Top-Up” Benefits Discriminatory?

March 17, 2016

For the previous publication on the Nova Scotia Human Rights Board of Inquiry Decision which considered whether an employer’s failure to provide top-up benefits to biological parents on parental leave was discriminatory, please click below:

Is the Failure to Provide Parental Leave “Top-Up” Benefits Discriminatory?

The complainant was a unionized employee and his Collective Agreement provided top-up benefits to adoptive parents, but not to biological parents. The Board of Inquiry concluded that the distinction in benefits constituted discrimination on the basis of family status.

The Union appealed the Board of Inquiry’s decision to the Nova Scotia Court of Appeal. The issues on appeal were: (1) whether the top-up was discriminatory within the meaning of the Nova Scotia Human Rights Act and, if so, (2) whether the top-up was saved by s. 6(i) of the Act as a “program or activity that has as its object the amelioration of conditions of disadvantaged individuals or classes of individuals” –adoptive parents.

The Court of Appeal issued its decision on February 10, 2016. The Court upheld the Board of Inquiry’s conclusion that the provision of top-up benefits to adoptive parents and not to biological parents was discriminatory on the basis of family status. However, the Court went on to conclude that the provision of top-up benefits only to adoptive parents was saved by Section 6(i) of the Act. Section 6 exempts certain circumstances from the prohibition of discrimination in the Act. In particular, Section 6(i) provides that the prohibition of discrimination does not apply to preclude a program that that has as its object the amelioration of conditions of disadvantaged individuals. The Union and the employer argued that the provision of top-up benefits was intended to ameliorate the circumstances of adoptive parents, who they submitted were a disadvantaged group.

The Court of Appeal noted that the uncontradicted evidence was that:

  • A heavy majority of adopted children have special needs, not so for birth children.
  • Adoptive families often struggle with bonding that is natural to the birth relationship.
  • Adoptive parents are particularly stressed during the six month probationary period after the placement, when the adoption is at risk.
  • The post-placement infrastructure for adoptive parents is less supportive than for natural parents.

The Court accepted that adoptive parents are a disadvantaged group, and that the object of the top-up benefits was to ameliorate their circumstances. Accordingly, the Court concluded that the provision of top-up benefits only to adoptive parents (and not to biological parents) was saved by Section 6(i) and did not violate the Human Rights Act. On that basis, the Court of Appeal overturned the Board of Inquiry’s order and dismissed the Human Rights complaint.

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