Two long-awaited decisions from the Federal Court confirm that protection from discrimination on the ground of ''family status'' under the Canadian Human Rights Act includes childcare obligations. The court also states that employers must accommodate substantial parental obligations.
Both cases stemmed from decisions where the Canadian Human Rights Tribunal (CHRT) found that employers failed to accommodate an employee's childcare obligations.
In the first case, the complainant, Ms. Johnstone, and her husband were both customs inspectors for the Canada Border Services Agency (CBSA). They both worked irregular shifts with CBSA.1 When the complainant returned to work after maternity leave, she was unable to find childcare to match the couple's shift schedules. She therefore requested accommodation in the form of fixed shifts. CBSA agreed to provide fixed shifts, but only on a part-time basis in keeping with its policy. She subsequently filed a complaint under the Canadian Human Rights Act.
In its decision the CHRT found that Ms. Johnstone was a victim of discrimination on the basis of family status. The CHRT held that "family status" is broad enough to encompass obligations arising from becoming a parent. The CHRT found that CBSA's policy of refusing full-time hours to employees requesting accommodation due to child-rearing responsibilities was prima facie discriminatory on the basis of family status. Given CBSA's failure to demonstrate undue hardship or a bona fide occupational requirement that necessitated the discriminatory conduct, the CHRT found that Ms. Johnstone's complaint was substantiated.
In the second case, the complainant, Ms. Seeley, lived in Alberta but was required by her collective agreement to temporarily relocate to cover a major staff shortage in Vancouver.2 Ms. Seeley informed her employer, Canadian National Railway (CN), that she was unable to immediately report to Vancouver because of her childcare obligations. She explained that her husband also worked irregular shifts for the same employer and could not provide childcare. Ms. Seeley requested an extension of time to report and eventually asked to be exempted indefinitely from her collective agreement obligations for compassionate reasons. Although the requested extension of time was granted, Ms. Seeley was eventually notified that she must report to cover the shortage or her employment would be terminated in accordance with the collective agreement. She was ultimately dismissed when she failed to report to Vancouver. Ms. Seeley subsequently filed a complaint with the Canadian Human Rights Commission.
The CHRT found that Ms. Seeley established a prima facie case of discrimination. Because of her duties as a parent, the tribunal found, CN's rules and practices resulted in her being unable to participate fully and equally in employment. Although CN proved that covering the shortage was a legitimate purpose, the CHRT found that CN failed to establish it could not accommodate the complainant without undue hardship.
The decisions of the Federal Court
In both cases, the employers argued that the CHRT applied an incorrect test in finding that a prima facie case of discrimination had been established. Both argued that a prima facie case of discrimination on the basis of family status will be found only when an imposed condition of employment results in a serious interference with a substantial parental obligation. This test was applied by the B.C. Court of Appeal in the case of Campbell River in relation to an employee who successfully argued that changes to her work hours seriously interfered with her obligation to attend to the special care of her disabled son.3
In Johnstone, the court confirmed the CHRT's finding that Ms. Johnstone had established a prima facie case of discrimination on the ground of family status. The court held that the childcare obligations raised in human rights complaints based on family status must be substantial parental obligations and the employee must have tried to reconcile family obligations with work obligations.4 The court went on to reject the Campbell River test and held that the question that should be asked is ''whether the employment rule interferes with an employee's ability to fulfill her substantial parental obligation in any realistic way.''
In Seeley, the court also confirmed the CHRT's finding that the complainant established a prima facie case of discrimination. The court held that ''by any standard'' Ms. Seeley had provided evidence of a prima facie case of discrimination based on family status. The court concluded that Ms. Seeley met the requirement of showing she had a substantial childcare obligation.
Implications for employers
It is now well established that the ground of family status extends protection to employees who require accommodation for certain childcare obligations. However, the test for determining when the duty to accommodate arises is unclear. Unfortunately, the decisions in Johnstone and Seeley do not provide the much-needed guidance regarding when a prima facie case of discrimination will be found, thereby triggering the employer's duty to accommodate an employee's childcare obligations.
Although the Federal Court rejected the Campbell River test in Johnstone, it adopted a test that is quite similar. In the court's view, the duty to accommodate arises where ''an employment rule or condition interferes with an employee's ability to meet a substantial parental obligation.'' This would suggest the duty only arises where the childcare obligation is significant or important. However, the court provided no guidance as to what constitutes a "substantial parental obligation."
For example, the court did not address the issue of whether employers must accommodate an employee's personal choice as regards childcare, as opposed to a true parental obligation that subsists regardless of personal preferences. The arbitral case law is much clearer in this regard. In fact, many arbitrators have held that it is only when the employee has done everything within his or her power to arrange childcare and is unable to reconcile competing family and work obligations that the duty to accommodate will arise. This issue will certainly remain a live one for employers until further clarification is provided either by legislative intervention or a higher court.
Although the test for establishing discrimination on the basis of family status remains unclear, employers must nonetheless ensure that employees clearly identify their conflicting obligations and the steps they have taken to resolve the conflict. This will allow the employer to better assess whether denying the request could lead to an allegation of discrimination.
1 Attorney General (Canada) v. Johnstone, 2013 FC 113 (''Johnstone''). The initial complaint was dismissed and then remitted to the CHRC following a judicial review, see Johnstone v. Canada (Attorney General), 2007 FC 36; aff'd Canada (Attorney General) v. Johnstone, 2008 FCA 101. The CHRC referred the complaint to the CHRT, see Johnstone v. Canada Border Services Agency, 2010 CHRT 20.
2 Canadian National Railway v. Seeley, 2013 FC 117 (''Seeley''), affirming Seeley v. Canadian National Railway, 2010 CHRT 23.
3 Health Science Assn. of British Columbia v. Campbell River and North Island Transition Society, 2004 BCCA 260 at para. 39 (''Campbell River''). Whereas, the CHRT applied a broader test holding that any parental obligation that prevents an employee from equal participation in the workforce will be discriminatory if the employer cannot show undue hardship or a bona fide occupational requirement - Hoyt v. Canadian National Railway, 2006 CHRT 33.
4 Johnstone, see note 1, at para. 120.
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