Can we legally refuse to promote one of them or refuse them a position that would put them in a close working relationship?
Question: Two of our employees recently married each other. They don’t work in the same department, but are on career paths that could eventually land them in the same area, with one potentially reporting to the other. One of our VPs is concerned and is wondering if the fact they are married could cause problems. Can we legally refuse to promote one of them or refuse them a position that would put them in a close working relationship?
Answer: In all Canadian provinces, human rights legislation prohibits an employer from discriminating against any person with regard to employment or any term or condition of employment because of the marital or family status of that person. However, either implicitly or explicitly, human rights legislation across Canada also provides that discrimination with respect to employment is permitted if any refusal, limitation, specification, or preference is based on a bona fide occupational requirement (BFOR).
As such, refusing to promote or to place an employee because he would work closely with a spouse is prima facie discriminatory. Doing so treats the employee differently than other employees because of his relationship with a family member.
In order to justify such a decision (and demonstrate a BFOR) an employer must show the decision is:
•imposed in good faith;
•rationally connected to the requirements of the workplace;
•fully communicated to employees in advance of its implementation; and,
•reasonably applied in the circumstances (this requires a consideration of individual circumstances so as not to create an undue burden on the employees in question).
In addition, in a unionized environment, a hiring or posting decision based on family or marital status will be a workplace rule, and must satisfy the “KVP” requirements that a rule imposed by the employer:
•must not be inconsistent with the collective agreement;
•must be reasonable; and
•must be clear and unequivocal.
Thus, it will be necessary for you to consider each promotion or job assignment on a case-by- case basis to determine whether it is possible to promote or assign the employee without putting him in a “conflict of interest” situation with his spouse. In many cases, it is possible to organize the workplace so spouses work on different projects and/or report to separate supervisors.
Where spouses work in the same department where one spouse is more senior, it may be possible to ensure the more junior spouse reports to a different manager and the more senior spouse is excluded from all assessment of the junior spouse’s work. In mid-sized and large organizations, it is usually possible to make such accommodations without considerable difficulty.
However, when an employer cannot reasonably organize its workplace to avoid the possibility of a conflict of interest between married spouses, then that employer will likely have a bona fide reason to refuse that posting or promotion.
Brian Kenny is a partner with MacPherson Leslie and Tyerman LLP in Regina. He can be reached at (306) 347-8421 or [email protected].
Answer: In all Canadian provinces, human rights legislation prohibits an employer from discriminating against any person with regard to employment or any term or condition of employment because of the marital or family status of that person. However, either implicitly or explicitly, human rights legislation across Canada also provides that discrimination with respect to employment is permitted if any refusal, limitation, specification, or preference is based on a bona fide occupational requirement (BFOR).
As such, refusing to promote or to place an employee because he would work closely with a spouse is prima facie discriminatory. Doing so treats the employee differently than other employees because of his relationship with a family member.
In order to justify such a decision (and demonstrate a BFOR) an employer must show the decision is:
•imposed in good faith;
•rationally connected to the requirements of the workplace;
•fully communicated to employees in advance of its implementation; and,
•reasonably applied in the circumstances (this requires a consideration of individual circumstances so as not to create an undue burden on the employees in question).
In addition, in a unionized environment, a hiring or posting decision based on family or marital status will be a workplace rule, and must satisfy the “KVP” requirements that a rule imposed by the employer:
•must not be inconsistent with the collective agreement;
•must be reasonable; and
•must be clear and unequivocal.
Thus, it will be necessary for you to consider each promotion or job assignment on a case-by- case basis to determine whether it is possible to promote or assign the employee without putting him in a “conflict of interest” situation with his spouse. In many cases, it is possible to organize the workplace so spouses work on different projects and/or report to separate supervisors.
Where spouses work in the same department where one spouse is more senior, it may be possible to ensure the more junior spouse reports to a different manager and the more senior spouse is excluded from all assessment of the junior spouse’s work. In mid-sized and large organizations, it is usually possible to make such accommodations without considerable difficulty.
However, when an employer cannot reasonably organize its workplace to avoid the possibility of a conflict of interest between married spouses, then that employer will likely have a bona fide reason to refuse that posting or promotion.
Brian Kenny is a partner with MacPherson Leslie and Tyerman LLP in Regina. He can be reached at (306) 347-8421 or [email protected].
