Employers are prohibited from discriminating
against employees based on "family status" under the
Human Rights legislation in every Canadian jurisdictions, except in
New Brunswick. Although the legislation across jurisdictions is
fairly similar, until this year there has been widespread debate
about if, and when, an employee's child care obligations can
trigger the duty to accommodate.
After a decade of uncertainty, the decision Canada (Attorney General) v. Johnstone
provides employers with some clarity.
What happened?
Ms. Johnstone and her husband were both employed
by the Canadian Border Services Agency ("Agency"). The
Agency rotates its permanent full-time employees through various
shift schedules, including weekends and evenings, with no
predictable pattern. Employees were given 15 days notice of each
new shift schedule.
Ms. Johnstone took extensive steps to find reliable child care for
their two young children, including investigating many registered
and unregistered child care providers, consulting with family, and
examining the costs of a live-in nanny.
With no acceptable options which would work with the shift
schedule, Ms. Johnstone asked the Agency to place her on a
full-time fixed work schedule. The Agency denied the request, on
the grounds that it had an unwritten policy requiring full-time
employees to work the rotating shifts, and had no obligation to
accommodate child care obligations.
Ms. Johnstone filed a complaint with the Canadian Human Rights
Commission alleging discrimination on the basis of family status
under the Canadian Human Rights Act. 10 years later, after
five separate decisions, the matter was ultimately decided by the
Federal Court of Appeal.
The Agency's policy was found to be discriminatory and no undue
hardship could be established as the Agency had previously
accommodated employees, putting them on a fixed schedule. The Court
required the Agency to revise its policy and accommodate Ms.
Johnstone. Ms. Johnstone was also awarded lost wages and her legal
costs.
What child care obligations are protected?
The Court determined that protection against
discrimination based on "family status" includes parental
obligations that form part of the legal relationship between parent
and child – specifically, those obligations "...
which a parent cannot neglect without engaging his or her legal
liability". For example, the Court said a parent cannot
leave a young child at home, unsupervised. Therefore, where a work
requirement contributes to a parent's inability to secure
reliable child care, that requirement may be discriminatory.
The employee must, however, be able to demonstrate that they have
taken reasonable steps to attempt to secure reliable child care
before any duty to accommodate is triggered.
What child care obligations are not protected?
The short answer is that obligations that stem from a parent's personal choice are not protected. The Court said:
The framework for determining whether there has been discrimination
Parental-type obligation: a
child must be under the employee's care and supervision.
Legal responsibility: it is the employee's
legal responsibility to ensure the child care obligation is met.
The child care obligation must be one that is a legal parental
responsibility, rather than a personal family choice.
Reasonable efforts have been made by the employee to meet
their legal duty: the employee must make reasonable
efforts to consider multiple alternative solutions to meet their
child care obligations. What is "reasonable" will vary
substantially based on the individual circumstances of the
employee, the family and the child.
Interference by employer: a workplace rule,
policy, procedure, decision, schedule, etc. must interfere with the
employee's child care obligations in a manner that is more than
trivial or insubstantial.
The Court rejected earlier decisions that required there to be
special or extreme circumstances in a family (such as a child's
disability), a change made by the employer, or a "serious
interference" with child care obligations, before
discrimination is found.
How does an employer accommodate child care obligations?
As always, an employer is required to accommodate an employee up to the point of undue hardship and an employee has a duty to participate in his or her own accommodation. There is no one-size-fits-all solution or checklist of steps. Ideally, the employer and the employee will be able to work together to develop a solution that works for both parties. The Court was clear in Johnstone that moving an employee from full-time status to part-time status, if accompanied by loss of salary and benefits, was not an appropriate form of accommodation. Ms. Johnstone had been offered the opportunity to work on a fixed part-time schedule (34 hours per week as opposed to 37.5 hours per week), however this would have required her to take not only a pay cut, but a cut to her full-time benefits. As it placed a financial burden on the parent with the child care obligation, such an offer was found to be discriminatory.
Cases since Johnstone
Most jurisdictions will adopt the
Johnstone analysis and has already been applied by the
Human Rights Commissions of at least two provinces (as well as a
second Federal Court of Appeal decision):
In Canadian National Railway v. Seeley, the
Federal Court of Appeal found that CN Rail's refusal to exempt
an employee/parent from a temporary transfer to Vancouver was
discriminatory based on family status, as CN Rail had failed to
consider and accommodate the employee's child care needs. The
Court noted that CN's inability to provide her with information
about the job in Vancouver – notably, the length of the
assignment, her working hours and accommodation arrangements
– meant it was not reasonable to require that the employee
consider bringing her children with her.
In Clark v. Bow Valley College, the Alberta
Human Rights Commission found the College had discriminated against
a nursing instructor by refusing to allow her to return to work 27
days after her leave expired when she was unable to locate
appropriate child care. The College argued the employee's
challenges to finding child care – residing in a small town,
driving a car that did not accommodate her child's car seat,
not putting her child in a facility with more than a few children
to reduce his exposure to illness (medically, the child was
particularly vulnerable to illness) her husband continuing to work
full-time – were all personal family choices that did not
require accommodation. The Commission disagreed, concluding the
employee had suffered discrimination.
In Wing v. Niagara Falls Hydro, the Ontario
Human Rights Commission also adopted the Johnstone
approach, but found that a resolution requiring directors to attend
meetings at 3:30 p.m. and be removed from the Board if they missed
two consecutive meetings was not discriminatory against a Board
member who could not make meetings due to the need to pick her
child up from school at 3:45 p.m. and shuttle her to after-school
activities. The Commission held that the choices of sending her
child to a private school 20 minutes out of town, picking up her
child every day, enrolling the child in after-school activities and
failing to explore alternative arrangements were all personal
choices that prevented a finding of discrimination.
What this means to you?
When an employee comes to you with a child care
concern, you cannot dismiss them without determining if
accommodation is merited and possible. Some suggested steps
include:
Understand the problem. Identify what the employee
believes it is about the workplace that is causing or contributing
to the child care issue.
Ask for details about the search for child care
arrangements. Ask the employee what efforts they have made
to obtain child care, why they have not been able to secure
reasonable child care, the specific needs of the child, the
situation of the family and how long the employee believes they may
require some accommodation from the employer. Without these
details, an employer cannot assess whether the employee has taken
reasonable steps to find a solution before requesting
accommodation.
Consider whether the child care "obligation"
stems from a personal choice. In most cases, this
assessment will not be obvious. If there is any doubt that the
issue stems exclusively from a personal choice, seek legal advice
or consider accommodation.
Propose alternatives, but don't rush to a
solution. If an obvious alternative seems available it is
ok to ask the employee to look into it; however, don't assume
that suggestion will solve the problem. Instead, maintain an
approach that allows the employee to communicate ongoing problems
to you, discuss potential solutions with the employee, and review
all information given before coming to any final decision.
Document everything. Every conversation, request
and proposed solution should be documented, so that there is a
record of steps taken by the employer should the matter proceed to
a complaint.
Reassess as needed. Once an accommodation is put
in place, or another solution has been found by the employee, set a
time to follow-up and ensure the steps taken are working for
everyone. If they are not, continue working with the employee to
search for reasonable alternative solutions, and be open-minded
about the role you as employer can play in these solutions.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.