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
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
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
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.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
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.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).