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
“the question to be asked is
whether the employment rule interferes with an employee’s
ability to fulfill her substantial parental obligations in any
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.
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.
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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