The Federal Court has weighed in on the side of broader application of family status discrimination. Employers can expect more requests for accommodation of the choices their employees make about how they will meet their childcare responsibilities.
We have discussed this issue and reviewed the competing theories in an earlier post. This most recent case (Johnstone) finds in favour of the mother who sought a fixed day schedule instead of the standard rotating shifts set by her employer, the Canada Border Services Agency. Her request was to fit her work schedule to the childcare that was available to her. Her husband also worked a rotating schedule and he could not take over childcare responsibilities on a reliable basis.
The employer refused, citing its policy that restricted fixed day schedules to part time employees.
While the Federal Court found in favour of the broader interpretation of family status, a concern about how far it can be stretched is evident.
Employers can expect an increase in accommodation requests to help with basic issues of childcare (and eldercare). But even with this latest decision, it cannot be said that an employer will have a legal obligation to change their work processes and terms of employment to meet every request.
The Federal Court is still using words like:
“the childcare obligation … must be one of substance”, and
“the complainant must have tried to reconcile family obligations with work obligations”
and concludes:
“the question to be asked is whether the employment rule interferes with an employee’s ability to fulfill her substantial parental obligations in any realistic way.”
As a final note, it should be said that the facts as found in the case show that the employer did not do enough to help Ms. Johnstone. One of the lessons for employers is to do whatever you can to meet the reasonable requests of employees without fixating on whether a legal duty to accommodate has arisen.
If changes can be made without too much trouble, make them. It is good practice, it will help in retaining and recruiting good employees, and it will provide good evidence of your efforts to meet the duty to accommodate if it becomes an issue later.
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