Canadian employers should revisit their accommodation policies and procedures following a ruling on “family status” accommodation from the Federal Court.
In a January decision (2013 FC 113), Justice Mandamin upheld a ruling of the Canadian Human Rights Tribunal (CHRT) that had allowed a complaint of discrimination on the grounds of “family status.” The application for judicial review to the Federal Court resulted from a CHRT ruling that the Canadian Border Services Agency (CBSA) discriminated against employee Fiona Johnstone by failing to accommodate her childcare responsibilities at her place of employment. The Federal Court decision finds that childcare obligations fall within the scope of “family status” under the Canadian Human Rights Act, and that a duty to accommodate follows as a result.
The CHRT decision
Fiona Johnstone was a border services officer at Toronto Pearson Airport who worked fulltime on rotating shifts negotiated under a collective agreement. During the course of her employment, Ms. Johnstone had two children. Her husband also worked for the CBSA on rotating shifts, and their shifts overlapped approximately 60 per cent of the time. The irregular shifts made it difficult for the Johnstones to secure childcare.
To meet her childcare needs, Ms. Johnstone requested a move to fixed day shifts. CBSA policy restricted day shift work to part-time employees. As a result, Ms. Johnstone was required to relinquish her full-time status with the CBSA and lose eligibility to certain benefits only available to full-time employees. These benefits included training, advancement and pension benefits, among other things. Ms. Johnstone filed a complaint with the Canadian Human Rights Commission that was eventually referred to the CHRT and resulted in a decision released in 2010 (2010 CHRT 20).
Judge Mandamin’s ruling supports the CHRT’s finding that Ms. Johnstone had proven adverse differential treatment on the basis of “family status” and that the CBSA had failed to justify the variable shift policy as a bona fide occupational requirement or otherwise offer a reasonable explanation to exempt it from its obligation to accommodate.
The CHRT ordered that Ms. Johnstone be compensated for lost wages, benefits and pension contributions that would have been made to her if she had been able to work on a full-time basis during the relevant period. She was also awarded $15,000 for general damages for pain and suffering, and an additional $20,000 special compensation for the “wilful and reckless” conduct of the CBSA in failing to accommodate her.
Definition of “family status” includes parent and child relationship
The CHRT ruled, and Justice Mandamin affirmed, that the definition of “family status” is not limited to a descriptor of a relationship between the parties, but extends to the needs and obligations that result from those relationships. The CHRT confirmed that “family status” includes the obligations that arise between the parent and child.
Previous cases have held that “family status” discrimination should only be afforded protection in cases where there is a serious interference with parental obligations, and that the mere fact of having a child was not enough. For example, accommodation might be given to a parent of a child with a disability or serious health issue, but not to other parents. The CHRT and the federal court rejected this line of argument.
As a result of this case, discrimination on the basis of “family status” in a parent and child relationship will be made out where an employer’s rule interferes with an employee’s ability to fulfill a substantial parental obligation in a realistic way.
Process of accommodation is important
It is important for employers to recognize that the process of accommodation is important regardless of its outcome. Employers must seriously consider and assess any reasonable requests for accommodation or risk being found in breach of human rights legislation.
The CHRT found that the CBSA made no attempt to accommodate Ms. Johnstone or inquire into her individual circumstances. It held that “the CBSA allowed individualized assessments of employees seeking accommodation on medical or religious grounds but responded to Ms. Johnstone on the mass of a blanket policy that required her to forfeit her status as a full-time employee.” Further, the CHRT held that “the CBSA’s policy was based on the arbitrary assumption that the need for accommodation on the basis of family obligations was merely the result of choices that individuals make, rather than legitimate need.”
It is important for employers to learn from what CBSA did here, and to do things differently.
Accommodation decisions to be based on legitimate occupational requirements
Employers must ensure that decisions with respect to whether to allow an employee’s request for accommodation are based on bona fide occupational requirements.
The CBSA put forward many arguments for why it could not accommodate requests for childcare accommodation, including that management would be inundated with such requests, that the costs would be prohibitive, and that it would be destructive to 24 hour operations at Pearson to allow fixed shifts. The CHRT held that the operational concerns for not allowing Ms. Johnstone’s request were “impressionistic assumptions” and that there was no justification for this policy, nor had the CBSA shown that accommodation of Ms. Johnstone would result in undue hardship.
Accommodation policy and training
In order to avoid costly human rights complaints and litigation, employers should ensure that their accommodation policies address family status accommodation, including a process for individual assessments for employees who request accommodation for childcare and other family status accommodation requests. Additionally, managers and supervisors should be given human rights and accommodation awareness training and should be trained on how to properly administer the employer’s accommodation policy.
In finding for Ms. Johnstone, the CHRT took notice of the fact that the CBSA did not have an accommodation policy, and its managers and supervisors were not given adequate awareness of and training on accommodation issues.
Communicate employee obligations
Employers should ensure that their accommodation policies inform employees of their obligations with respect to accommodation. These obligations should also be communicated to employees during the accommodation process.
The onus is on employees to show that they have made reasonable efforts to find solutions to their family obligations before requesting assistance from their employer. In his decision, Justice Mandamin held that “childcare obligations arising in discrimination claimed based on family status must be one of substance and the complainant must have tried to reconcile family obligations and work obligations.”
In Ms. Johnstone’s case, the CHRT held that Ms. Johnstone had met her obligations. She had a spouse who also worked rotating shifts which made arranging childcare more difficult. She was able to arrange for child care with family members for part, but not all, of the time she was working, and when her spouse could not take over for her. She had also made efforts to find alternative solutions to family care, but was unsuccessful. She also provided multiple options to her employer for how such accommodation might be structured.
Employers who have shift workers, or workers that work non-standard hours should pay particular attention to this ruling - the fact that childcare services are not readily available for parents working non-standard hours was a factor in the decision of the CHRT.
What this means for employers
The Federal Court ruling adopts a broad interpretation of “family status” and the protections it deserves. The decision affects not only employers of workers with young children, but could also extend to workers with aging parents or other family members that might require significant care that request accommodation.
There is little doubt that organizations will contest this view of “family status,” because the range and complexity of burdens it may impose could make scheduling and management much more difficult. At the same time, employers must confront the reality of this ruling and consider how they can be more flexible in accommodating family status needs.
Inevitably in accommodation employers ask the question “when is enough, enough?” or “when can we say no?” The answer is that an accommodation request cannot be refused unless it imposes an undue hardship. Tribunals and courts are not likely to find such hardship exists, unless employers show:
Their policies acknowledge the duty to accommodate “family status” in a manner which includes consideration of child care needs, where work requirements interfere
The policy and practice includes a process for judging if and how a need can be accommodated
Each request is addressed on the individual merits of the case, with an analysis of the true costs it will impose on the organization and others. It is important to include a consideration of the employee’s own duty and capacity to self-accommodate
Declining a request is based only on hard data, not slippery slope arguments or “impressionistic assumptions” about what accommodation may entail
Gowlings strongly encourages employers to work with human resources professionals and legal counsel to ensure that human rights obligations are being met. As our duties change, so too must our approach.
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.