In recent years, courts, tribunals and arbitrators have considered the obligations of employers when dealing with family status-related needs. In the recent case Attorney General of Canada v. Johnstone (Johnstone), the Federal Court of Canada (FC) determined the question of what constitutes discrimination on the basis of family status. The FC affirmed that it took a broad view of the issue.
Ms. Fiona Johnstone was employed as a Border Services Officer by the Canada Border Services Agency (CBSA). As a full-time employee, Ms. Johnstone worked rotational shifts that varied between days, evenings and nights. Upon returning to work in 2004 after the birth of her first child, and again in 2005 after the birth of her second child, Ms. Johnstone requested that she be placed on a fixed full-time schedule so that she could arrange for childcare. Ms. Johnstone's husband also worked full-time for the CBSA on a rotating schedule. It was therefore very difficult for the Johnstones to secure childcare corresponding to their fluctuating working hours.
In response to her accommodation request, the CBSA offered Ms. Johnstone part-time work on a fixed schedule, which she accepted. However, Ms. Johnstone wanted to maintain her full-time employee status to continue to have access to training and promotional opportunities and to continue her participation in the pension plan and other benefits afforded to full-time employees. Ms. Johnstone suggested alternative arrangements that would permit her to be treated as a full-time employee, but these arrangements were denied. While the CBSA had previously accommodated employees' medical and religious requests by undertaking individualized assessments and permitting exceptions to the rotational schedule (while maintaining the employees' full-time status), the CBSA's unwritten policy was that requests on the basis of childcare needs were regarded and treated differently.
The Human Rights Complaint
Ms. Johnstone filed a human rights complaint claiming that the CBSA had discriminated against her on the ground of family status. In August 2010, the Canadian Human Rights Tribunal (Tribunal) allowed Ms. Johnstone's complaint, finding that she had suffered adverse differential treatment in the course of employment based on family status related to the raising of her two children.
With respect to the ground of family status, the Tribunal held that this term is meant to protect against discrimination based on 1) the identification of one as a parent or familial relation of another person and 2) the needs and obligations that naturally flow from those relationships. Although the Tribunal acknowledged that having children is a personal choice, the purpose clause of the Canadian Human Rights Act – which includes the statement "... all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have" – had the effect of granting protection against discrimination based on such personal choices.
The Tribunal held that the CBSA had been unable to establish that the rotating shifts worked by its full-time employees were a bona fide occupational requirement. It also found that Ms. Johnstone's accommodation request to work lengthier shifts on a fixed full-time schedule would not have resulted in undue hardship for the CBSA. Ms. Johnstone was awarded compensation for lost wages, benefits, pension contributions and overtime pay that she would have made had she been permitted to work on a full-time basis during the relevant period. She was also awarded $15,000 for pain and suffering and $20,000 in special compensation.
The Judicial Review Application
The CBSA sought judicial review of the Tribunal's decision. In the FC's Johnstone decision, released on January 31, 2013, Justice Mandamin held that a reasonableness standard of review applied to the Tribunal's interpretation of the scope of the term "family status," its finding that Ms. Johnstone had established a prima facie case of discrimination and the remedies that the Tribunal granted for such discrimination. The application of a reasonableness standard means that the FC was required to determine whether the Tribunal's decision fell within a range of possible outcomes based on the evidence that the Tribunal had before it.
The FC found that the Tribunal's definition of the term "family status" was reasonable and consistent with previous jurisprudence. It also agreed with the Tribunal's finding that a prima facie case of discrimination had been made out by Ms. Johnstone. With respect to the award, however, the FC found that the Tribunal exceeded its jurisdiction and acted unreasonably when it ordered the CBSA to develop written policies to address family status accommodation requests satisfactory to Ms. Johnstone. The FC also sent the issue of compensation for lost wages back to the Tribunal for reconsideration, as the Tribunal had not deducted any amounts for a voluntary leave that Ms. Johnstone had taken during the relevant period.
Competing Theories on Family Status
In reaching its decision in Johnstone, the FC endorsed one approach to examining the issue of discrimination on the basis of family status.
There are divergent views within the provincial and federal jurisprudence regarding the applicable threshold test for establishing a case of discrimination on the ground of family status. As the Supreme Court of Canada has not yet provided a detailed analysis of the definition and scope of family status, employers are left with multiple standards to consider. Although employers should ultimately seek guidance from the jurisprudence of the jurisdiction in which they operate, administrative tribunals, courts and arbitrators regard human rights jurisprudence from other provincial and federal authorities as persuasive and should therefore be considered by employers.
The "Serious Interference" Test
The most stringent threshold test for discrimination on the basis of family status was articulated in the British Columbia Court of Appeal's (BCCA) decision in Campbell River and North Island Transition Society v. Health Sciences Assn. of British Columbia (Campbell River). There, the BCCA held that employers do not discriminate in every instance where family duties and a job requirement are in conflict – tensions often arise between the two sets of obligations. Instead, as long as there is no bad faith, a prima facie case of discrimination on the basis of family status may arise where:
- there is a change in a term or condition of employment that is imposed by the employer;
- the change seriously interferes with a family obligation; and
- the family obligation is a substantial one, that only the employee can reasonably and practically fulfill.
Subsequent decisions adopting the Campbell River approach have shown that it is not easy to meet the "serious interference" test for finding a prima facie case of discrimination based on family status. In particular, the case law suggests that the parental responsibilities in question must fall outside the "usual" or "expected" realm of parenting obligations and fall into an "extraordinary" category instead. The approach is the leading one in British Columbia and has been considered by Alberta and Ontario decision-makers as well.
The "Any Adverse Effect" Test
In contrast to the Campbell River test is the "any adverse effect" test. This test has been adopted by the Canadian Human Rights Commission in Hoyt v. Canadian National Railway and also by the FC.
Under this test, a prima facie case for family status discrimination will be made out where the complainant can demonstrate that, as a result of an employer action or a change in the characteristics of family status, a conflict has arisen between his or her workplace and family responsibilities that has an adverse impact on any parental obligation, thereby entitling the complainant to accommodation.
The Middle Ground?
The "serious interference" approach has been heavily criticized for creating a more onerous threshold test for discrimination on the basis of family status than that which applies to other prohibited grounds of discrimination. That is, by requiring that there be a "serious interference" with a "substantial parental duty or obligation" before a prima facie case of discrimination can be found, the protection against discrimination on the basis of family status is reduced as compared to other protected grounds, such as disability, religion or race.
The "serious interference" test has also been questioned in other decisions, such as International Brotherhood of Electrical Workers, Local 636 v. Power Stream Inc. for its holding that discrimination can only be found where there is a change in an employer rule. Often, it is a change in the characteristics of family status (e.g., divorce, illness) that precipitates a conflict between an existing work rule and parental obligations. That the rule was already in existence when a conflict arose should therefore not determine the issue of whether accommodation is appropriate or necessary.
On the other hand, the "any adverse effect" test has been criticized as overly broad and inappropriately forcing employers to accommodate all family status choices of employees that result in tensions between familial duties and workplace responsibilities.
As a result, several decisions have attempted to find an approach that reconciles the two extremes, albeit in a manner that appears to require a serious interference with substantial parental obligations.
For example, in Alberta (Solicitor General) v. Alberta Union of Provincial Employees (Jungwirth Grievance), a panel of arbitrators heard a grievance in which the employer's scheduling changes with respect to night shifts amounted to discrimination on the basis of family status for a single-parent employee who would have difficulty finding overnight childcare. However, the panel found that the evidence failed to establish that reasonable alternatives for childcare on the nights the employee worked were unavailable. It was not sufficient for the employee to cite interference between work and parental obligations. The employee also had to provide sufficient evidence that reasonable alternatives aside from employer accommodation are unavailable.
While the FC denies that it moved towards the "serious interference" standard, its qualified language in Johnstone suggests that a blended approach is preferred. Justice Mandamin writes that "the childcare obligations arising in discrimination claimed based on family status must be one[s] of substance and the complainant must have tried to reconcile family obligations with work obligations." He describes the applicable threshold test as whether the "employment rule or condition interferes with an employee's ability to meet a substantial parental obligation in any realistic way."
It remains to be determined which approach will attain dominance, but a standard that requires "serious interference with a substantial parental obligation," absent the requirement that the conflict arise as a result of an employer-initiated rule or change, will be consistent with recent decisions and would, in our view, constitute a reasonable and balanced approach to identifying discrimination on the basis of family status.
Impact on Employers
Despite the existence of conflicting approaches to determining whether a prima facie case of discrimination on the basis of family status has been made out, the case law is largely unanimous that "family status" includes not only the status of being a parent, but also the parental obligations that flow from such status, such as child rearing.
Although the case law regarding family status discrimination often places an emphasis on child care, there are natural analogies to be drawn to other dependent relationships that may exist in family structures, including elder care. The development of a variety of job-protected leaves in employment standards legislation across the country indicates that these issues are top of mind for Canadians.
Finally, while case law continues to develop, it remains the case that accommodation must be attempted in good faith by all parties. The facts, as reported in Johnstone, indicate that the employer fell short in searching for a reasonable solution for its employee. An employer's duty to accommodate an employee requires an examination of the unique facts and circumstances of each case, but employers are well advised to be open to hearing employees' issues and discuss flexible options when work requirements have a serious, negative impact on an employee's family obligations. Similarly, accommodation continues to be a two-way street: employees, too, have an obligation to pursue reasonable solutions to a conflict.
In the end, keep in mind that, in many cases, the accommodation measures adopted – which might include leaves, alternative work or pay arrangements and flexible hours – may be merely temporary and will go a long way to developing and maintaining goodwill within a workforce. These factors, in addition to the operational needs of your organization, should be considered when you select the best way forward for your business.
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