FTR Now
Federal Court Affirms Employer’s Obligation to Accommodate Childcare Needs
Date: February 7, 2013
The Federal Court of Canada has upheld the finding of the Canadian Human Rights Tribunal (“Tribunal”) that “family status” under the Canadian Human Rights Act (“CHRA”) includes a parent’s obligations to care for a child, and that an employer is obligated to provide accommodation for an employee’s childcare needs. This decision is the latest in a series of cases, rendered both under the Ontario Human Rights Code and the CHRA, that have considered the issue of accommodating childcare requirements within the context of scheduling work hours.
Key to the Federal Court’s finding was that the policies of the employer interfered with the employee’s “ability to fulfill her substantial parental obligations in any realistic way,” no attempts were made by the employer to inquire into the employee’s circumstances or to provide accommodation and accommodation would not have caused the employer any undue hardship.
This FTR Now discusses the decision (Attorney General of Canada v. Johnstone) and its practical implications for employers.
THE BACKGROUND OF THE DECISION
The employee, Ms Johnstone, worked rotating shifts for the Canada Border Services Agency (“CBSA”) at Pearson International Airport. The CBSA operates 24 hours a day, seven days a week. After her second child was born, Ms Johnstone requested accommodation in the form of three fixed daytime shifts of 13 hours each, to maintain her full time employment status and as well maintain her pension and benefits entitlements. That request was denied and, in accordance with an unwritten policy that employees seeking accommodation for childcare arrangements had to go to part-time shifts, she was offered a part-time arrangement. Ms Johnstone complained to the Canadian Human Rights Commission (“CHRC”) and eventually, her complaint was heard by the Canadian Human Rights Tribunal (“Tribunal”).
The Tribunal found that “family status” included parental obligations. It concluded that a prima facie case of discrimination had been established, the CBSA failed to consider accommodation of Ms Johnstone’s childcare needs and any accommodation would not have caused the CBSA undue hardship. In so finding, the Tribunal considered expert evidence led by both parties on the issues of work-life balance and favoured the testimony of Ms Johnstone’s expert that creating policies to accommodate such issues would not open the floodgates to similar requests at the same time, on the basis that in an organization, there are a “range of people in or at a range of life cycle places.”
The Tribunal ordered the CBSA to pay lost wages and special compensation, and to establish policies to address family status accommodation requests.
THE FEDERAL COURT DECISION
The Federal Court upheld the decision of the Tribunal, finding that it was reasonable.
First, the Court found it was reasonable to conclude that “family status” includes a parent’s obligations to care for a child.
Second, the Court found that a prima facie case of discrimination was established. Ms Johnstone was unable to find childcare that would allow her to continue with her rotating shifts, the CBSA did not inquire into her circumstances, the move to part-time affected her pension and benefits entitlements, and the CBSA had accommodated other employees on religious and medical grounds. The Court stated that the CBSA’s unwritten policy that employees seeking accommodation for childcare arrangements had to go to part-time shifts was arbitrary, unevenly applied and not based on legitimate need.
Third, the Court found that the CBSA could have accommodated Ms Johnstone without any undue hardship.
Significantly, the Court affirmed the Tribunal’s rejection of the test articulated in Health Sciences Assoc. of B.C. v. Campbell River North Island Transition Society (“Campbell River“) which stated that a prima facie case of discrimination on the basis of family status could only be established where there was a “serious interference” with a substantial parental or other family duty.
With some exceptions, the Court upheld the remedial orders of the Tribunal.
DISCUSSION AND IMPLICATIONS FOR EMPLOYERS
The approach in Johnstone (and the companion case of CNR v. Seeley and Canadian Human Rights Commission, released the day after the Johnstone decision) is the latest development in the continuing debate over the extent of the duty to accommodate employee childcare obligations.
Arbitrators and other decision-makers have applied different approaches to establishing prima facie discrimination on the basis of family status. Some have followed the approach in Campbell River, and found that employers’ duty to accommodate is triggered only where there would be a serious interference with a substantial parental obligation. Others have followed a more liberal interpretation of the duty to accommodate family obligations, as reflected in the Johnstone decision.
A key factor in the Court’s reasoning in Johnstone, however, was that the CBSA failed to make any effort to inquire into the circumstances of Ms Johnstone, and instead denied the accommodation request outright. By contrast, Ms Johnstone had proposed various options which would have allowed her concerns to be addressed. The Court also noted that the CBSA’s position was based on what the Tribunal found to be “impressionistic” evidence, rather than empirical or objective evidence, in support of its claim that it could not accommodate Ms Johnstone. Finally, the Court noted that the CBSA did accommodate scheduling requests which were based on religious or medical grounds.
The CBSA’s position was also undermined by the Court’s finding that the CBSA had previously been ordered by the Tribunal to undertake measures to address requests for accommodation of childcare obligations, and had not implemented all of the terms of that order.
Although the debate over the extent of employers’ duty to accommodate employees’ childcare obligations will likely continue until there is a definitive ruling by an appellate court (and quite possibly the Supreme Court of Canada), prudent employers should carefully assess any request for accommodation based on family obligations, taking into account such factors as:
- the terms of the employee’s contract
- the availability of the employee to work a particular shift or different shifts
- whether it is possible to accommodate an employee’s request to work a different shift
- other options available to accommodate the employee
- has the employee taken steps to explore alternative childcare options
- has the employee demonstrated a willingness to be flexible and to cooperate in the search for reasonable accommodation measures.
Employers should also take care to ensure that any position or policy they adopt with respect to accommodation of employee childcare obligations be based on demonstrable operational requirements, rather than on impressionistic evidence or assumptions.
Finally, employers may receive requests for accommodation of family care obligations involving family members other than young children. In light of demographic trends, increasing numbers of employees may assume care of parents or other family members. Accommodation of “family status” may extend to these care obligations as well.
If you require any information about the Johnstone decision or how the issue of “family status” and parental obligations to provide childcare may impact your organization, please contact George G. Vuicic, at 613.369.2103 or your regular Hicks Morley lawyer.
The articles in this Client Update provide general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Hicks Morley Hamilton Stewart Storie LLP and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Hicks Morley Hamilton Stewart Storie LLP. ©
