Employers should pay close attention to a recent decision of the Federal Court on whether an employee's parental childcare obligations are included in the term "family status" under the Canadian Human Rights Act. Discrimination on the basis of family status is prohibited under the Canadian Human Rights Act.
Fiona Johnstone worked for the Canadian Border Services Agency ("CBSA") at Toronto's Pearson International Airport. Before she had children, Johnstone worked regular rotating shifts as a full time employee. After the birth of her first child, Johnstone asked the CBSA to accommodate her family status by allowing her to work fixed day shifts to permit her to arrange childcare. CBSA refused Johnstone's request, relying on an unwritten policy that allowed only part time employees to work fixed day shifts.
The Canadian Human Rights Tribunal ("Tribunal") found that "family status" included parental childcare obligations. The Tribunal held that the CBSA discriminated against Johnstone on the basis of her family status.
The Federal Court upheld the Tribunal's decision. According to the Federal Court, discrimination on the basis of family status occurs when an employment rule interferes with an employee's ability to fulfill a substantial parental obligation in any realistic way.
The Federal Court also found that the CBSA had made no meaningful attempt to accommodate Johnstone or inquire into her individual circumstances, but chose to rely instead on its blanket policy requiring all full time employees to work rotating shifts. The Federal Court took notice that the CBSA accommodated employees on an individualized basis on medical or religious grounds. The Federal Court held that "family status" accommodation should be no different than accommodation of any other protected ground of discrimination.
Why Employers Should Pay Attention to This Decision
1. For federally regulated employers, "family status" now encompasses parental childcare obligations, and the test of discrimination is interference with the employee's ability to fulfill substantial parental obligation in any realistic way.
2. Even employers who are not federally regulated should take notice of the Johnstone decision. "Family status" human rights claims are becoming more common, and employers in every jurisdiction can expect to be faced with employee claims for accommodation on the basis of family issues, such as childcare and eldercare. Employers should ensure that each claim is considered individually, like medical and religious cases, to determine whether accommodation is possible without undue hardship.
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