10/23/2013 07:59 EDT | Updated 01/23/2014 06:58 EST

Are You Part of the 'Sandwich Generation'?

No it is not about food preferences -- it is about a generation of adults who form the meat in the sandwich in their continuing struggle to balance child care, elder care and work simultaneously.

Having both parents at work is the norm, which means that childcare obligations must be balanced, often precariously, with workplace duties. At the same time, our population is aging and people often end up having to look after their elderly parents. Effectively, those in the workforce are stuck in the middle, caring for the generations before and after them -- the "Sandwich Generation".

Can the "Sandwich Generation" manage this delicate balancing act? Yes, as long as the workplace co-operates. But just how far do employers have to go to accommodate "lifestyle" decisions to have children and obligations to care for elderly parents?

Prior to the last few years, the concept of "family status" in human rights legislation received little or no attention. In the past, it was seen as having been intended to protect employees from adverse treatment because they were married or because they had (or could have) children. Now, the concept has been extended further.

As the demographic phenomenon of the Sandwich Generation continues, and more employees find themselves needing to care for their loved ones, both younger and older, employees demand flexibility in the workplace. For the first time, this ground of discrimination is getting the attention it deserves.

Earlier this year, we learned that Fiona Johnstone, who worked shift work at Toronto Pearson Airport, asked to work set hours in order to accommodate child care obligations, after giving birth to her first child. Her request was denied, but she was offered stable, part-time work, and an adjusted schedule. Nonetheless, the Federal Human Rights Tribunal found that she was not being accommodated reasonably, and found that it was the employer's duty to do so. Headlines such as "Federal Court sides with new mother who claimed right to set work hours" followed.

More recently, for the first time, elder care was recognized as grounds for discrimination on the basis of family status.

In the matter of Hicks v. Human Resources and Skills Development Canada, the Canadian Human Rights Tribunal ordered HRSDC to pay a former employee $15,000 for pain and suffering, as well as the maximum award permitted under the Human Rights Act, $20,000, for denying his request for dual residence assistance after he was transferred from Sydney, N.S. to Gatineau but his wife had to stay behind to care for her ailing mother.

In this case, Mr. Hicks had been working for the Coal Mining Safety Commission in Sydney when he was transferred to its division in Gatineau. Unfortunately, his mother-in-law was too sick to travel, and required daily assistance, so his wife remained behind to care for her. During that time, Mr. Hicks applied for financial assistance, but was rejected on the basis of his mother- in- law not being considered a proper "dependent".

The Canadian Human Rights Tribunal disagreed, and found that the employer had demonstrated disregard and indifference to Mr. Hicks' family status, and failed to account for his family circumstances. Notably, the Human Rights Tribunal of Ontario had previously found that elder care obligations fell within the definition of "family status" in 2012 in its decision Devaney v. ZRV Holdings Ltd., when the complainant was dismissed due to absences, which related primarily to his obligations as the primary caregiver for his mother.

As the Sandwich Generation phenomenon continues, employers need to be mindful of the fact that by law, child and elder care obligations of its employees may be protected. At the same time, employees must understand that not all child or elder care is protected, and they do not have the right to impose their preferred terms of employment simply because they are responsible for looking after a child or an aging parent.

Employees cannot simply demand a different shift because they have a child, nor can they take time off of work just because their parents are getting older. They will have to produce compelling evidence of a legitimate need, such as the evidence of Mrs. Johnstone that there were no other viable childcare options. But, employers should never dismiss such requests for accommodation out of hand as occurred in the Johnstone case. Rather, they should consider the legitimacy of the request and, if appropriate, the potential for accommodation. An employer that can produce documentation of bona fide efforts to consider reasonable accommodation will be in a much stronger position to defend a discrimination claim.

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