In the recent decision of Attorney General of Canada v Johnston et al.,1 the Federal Court upheld the decision of the Canadian Human Rights Tribunal ("Tribunal"), which confirms that employers have a duty to accommodate their employees' childcare responsibilities, as they fall within the definition of "family status" under the Canadian Human Rights Act.
The applicant, Ms. Johnstone, worked as a full time border services officer with the Canadian Border Services Agency ("CBSA") on rotating shifts. She requested full time employment working fixed day shifts that would allow her to arrange childcare for her young children. CBSA policy limited fixed day shifts as requested by Ms. Johnstone to part time employees, however part time employees were not eligible for the same benefits as full time employees. The Tribunal held that Ms. Johnstone had established a prima facie case of discrimination on the basis of family status, and that the CBSA had not proven hardship such that they would be exempt from their duty to accommodate Ms. Johnstone's request.
At the hearing before the Tribunal, evidence was adduced that within her family, Ms. Johnstone had primary childcare responsibility. Following the birth of her second child in 2005, she could not find childcare that would allow her to resume her full time rotating shifts. Ms. Johnstone requested that she work full time in static 13 hour shifts over three days. Full time status required a minimum of 37.5 hours per week. CBSA denied this request and instead offered Ms. Johnstone part time work on a fixed schedule. Ms. Johnstone asked if she could remain on full time status and have the additional hours not worked characterized as a leave without pay, so that her income would remain pensionable. This request was denied.
An expert provided evidence regarding the lack of available childcare for parents working non-standard, rotating, unpredictable hours. There was also evidence at the hearing that the CBSA was able to accommodate employees seeking relief from rotating shift schedules for medical reasons by providing them with full time work on fixed shifts.
The Tribunal awarded the following remedies: that the CBSA cease its discriminatory practices against employees seeking accommodation based on family status for the purpose of childcare responsibilities; that the CBSA develop a plan to prevent further incidents of such discrimination; that the CBSA establish written policies and processes for individualized assessments for family status accommodation; compensation for Ms. Johnstone for lost wages, benefits (including pension contributions) and overtime that she would have earned had she been working full time for the material period; $15,000 in general damages for pain and suffering; and $20,000 as special compensation because it was found that the CBSA had deliberately denied protection to its employees by ignoring efforts to bring about change to their policies on family status accommodation.
The central issue on judicial review, was whether the term "family status" went beyond the question of mere "relationship" (i.e. we are not hiring you because we do not like your husband, we are not allowing you in this restaurant because you have children), and includes a secondary level of protection for issues around childcare. The Federal Court judge on judicial review accepted the conclusion of the Tribunal that the definition of family status includes childcare, stating that it falls "within the range of reasonable possibilities".
The Federal Court reviewed the efforts made by Ms. Johnstone to secure childcare in light of the CBSA's particular scheduling model, and the fact that her inability to find childcare in her situation was confirmed by expert testimony. The CBSA made no attempt to accommodate Ms. Johnstone or inquire into her individual circumstances, and instead chose to rely on their unwritten blanket policy. There was no evidence that it would have caused undue hardship to CBSA to accommodate Ms. Johnstone's request.
However, the Federal Court did go on to recognize that the duty to accommodate childcare is not unrestricted, and some of the onus will fall on a parent claiming accommodation: "In my view the 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 with work obligations."2 A prima facie case of discrimination based on family status will be made out in the context of childcare where "an employment rule or condition interferes with an employee's ability to meet a substantial parental obligation in any realistic way".3
IMPACT ON EMPLOYERS
The Johnstone decision will have a significant impact on employers. First, it reminds us that when an accommodation request pursuant to any of the grounds enumerated under either federal or provincial human rights legislation is received, an employer cannot rely on a blanket policy. Rather, the employer must consider the needs of the individual employee in each case, and carefully assess them against their operational capacity. Secondly, employers will have to accommodate their employees' childcare responsibilities where that responsibility is one of substance and the employee has made an attempt to reconcile family obligations with work obligations. Smaller organizations may be able to rely on the defence of undue hardship, however, this is a very high threshold to meet.
The Federal government has announced that they will be appealing this decision. We will keep you apprised of any developments regarding the appeal.
1 2013 FC 113
2 Ibid., at para. 120
3 Ibid., at para. 125About BLG
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