The Federal Court of Canada has upheld a decision of the
Canadian Human Rights Tribunal which found that employers have a
duty to accommodate an employee's childcare obligations in
certain circumstances on the basis of "family status," a
protected ground of discrimination under human rights
In Canadian (Attorney General) v.
Johnstone, Ms. Johnstone, an employee of the Canadian
Border Services Agency, wanted to work full-time for the purposes
of career advancement, but required changes to her shift schedule
so that she could arrange childcare for her children. She came up
with some scheduling compromises that, if accepted, would allow her
to work full-time without causing a great deal of difficulties for
the employer. The employer refused to allow the requested
modifications based on an unwritten policy that it only allowed
such accommodation for part-time workers. In accepting Ms.
Johnstone's complaint of discrimination based on family status,
the Canadian Human Rights Tribunal found that the employer's
refusal to accommodate amounted to discrimination. The
Federal Court upheld the decision on appeal.
The Federal Court noted that parental childcare obligations come
within the scope and meaning of "family status".
This finding has been echoed in other human rights adjudicators in
the past, including the Alberta Human Rights Commission in Rennie v Peaches and Cream Skin
In articulating the test for establishing a prima facie
case of family status discrimination, the Court stated that
"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."1 In its analysis, the Court
explained that the childcare obligations must be "of
substance" and that the complainant is required to take steps
to "reconcile family obligations with work obligations."
By framing the test this way, the Court rejected the approach
established by the British Columbia Court of Appeal in Campbell River and North Island Transition
Society,one of the foundational cases on family status
accommodation, which held that in order for a prima facie
case to be established, there be a serious interference with a
substantial parental or other family duty.
Although Johnstone dealt with Federal
human rights legislation, it is likely to have far-reaching
significance because it may followed by other human rights
tribunals across Canada. While
Johnstone is the latest word on this
rapidly evolving area of the law, it is still difficult for
employers to know when an employee's family status should be
accommodated in the workplace as labour arbitrators, who often have
jurisdiction to rule on human rights issues, still appear to favour
the Campbell Riverapproach.
What is an employer to do?
From a demographic perspective, the fact that many employees
have both childcare and eldercare obligations means that requests
for family status accommodation in the workplace are likely to
increase in the future. When faced with such requests,
employers should always consider (1) the actual difficulties that
would ensue in the workplace if the request were granted and (2)
what steps the employee has taken to address the conflict between
his work obligations and family obligations. Where no viable
alternatives for child care or elder care exist and the
employee's request would not result in undue hardship to the
employer, then the employer's duty to accommodate will likely
be triggered. As family status accommodation is a challenging area
of law that is constantly evolving, employers should seek legal
counsel in order to minimize the risk of complaints and costly
1.At para. 125.
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.
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