On May 2, 2014, the Federal Court of Appeal upheld both the Johnstone and Seeley decisions of the Canadian Human Rights Tribunal, which found that the Applicants were discriminated against on the basis of family status.
Canada (Attorney General) v. Johnstone
Both the Applicant ("Johnstone") and her spouse were employed as customs inspection officers at Pearson International Airport in Toronto. As a customs inspection officer, Johnstone was required to work 24 hour per day rotating shifts. After returning from a maternity leave, Johnstone asked her employer to accommodate her by permitting her to work three fixed 13 hour shifts per week so that she could obtain child care for the 36 fixed hours per week that she was at work. The employer refused and did not investigate her circumstances or inquire into what steps she had taken to find alternate childcare arrangements. Instead, the employer offered her fixed shifts over four days per week up to a maximum of 34 hours. The employer had an unwritten policy that employees seeking accommodation for childcare had to transfer to part-time status. The employer's offer essentially provided part time hours to Johnstone, which affected her pension and benefits entitlements.
The Applicant filed a complaint with the Canadian Human Rights Commission. The Tribunal held that childcare obligations fell within the meaning of "family status" under the Canadian Human Rights Act and found that the employer engaged in a discriminatory practice that adversely affected her on the basis of her family status. The Federal Court affirmed the Tribunal's decision.
The Federal Court of Appeal Affirms The Tribunal's Decision
Following the decision of the Federal Court, the employer then appealed the Johnstone matter to the Federal Court of Appeal. In its decision, the Federal Court of Appeal clarified the meaning of "family status" protections and clarified the test that should be applied to determining whether an applicant has established a prima facie case of discrimination on the basis of "family status."
The Court first emphasized an employee's obligation to self-accommodate, stating "it is only if the employee has sought out reasonable alternative childcare arrangements unsuccessfully, and remains unable to fulfil his or her parental obligations, that a prima facie case of discrimination will be made out."
The Court then outlined the test to be utilized in determining whether an applicant has established a prima face case of discrimination on the basis of family status, where the issue is the requested accommodation of childcare needs:
- That a child is under his or her care and supervision;
- That the childcare obligation at issue engaged the claimant's legal responsibility for that child, as opposed to a personal choice;
- That he or she has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible; and
- That the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfilment of the childcare obligation.
The Court ultimately held that Johnstone had a legal obligation to care for her children, that she had made significant efforts to self-accommodate but was unable to find alternate childcare arrangements that would be able to service her unpredictable shift schedule, and that her schedule interfered with her childcare obligations in more than a trivial or insubstantial way.
The Court also noted that "family status" protections do not extend to personal family choices, such as participation in extra-curricular activities, but only to parental obligations.
Seeley v. Canadian National Railway
Both the Applicant ("Seeley") and her husband were employed by the Canadian National Railway. Seeley was notified by her employer that she was assigned to work in the Vancouver terminal and had to report there within 30 days, or she would lose seniority rights and her employment would be terminated. At that time, Seeley was living in Alberta. Seeley sent letters to her employer seeking an accommodation as a result of her childcare needs. The employer provided a 30 day extension, however, when the extension expired, her seniority rights were forfeited and her employment was terminated.
Seeley complained to the Canadian Human Rights Commission, and the Tribunal found that the employer discriminated against Seeley on the basis of family status. The Federal Court affirmed this decision.
The Federal Court of Appeal Affirms The Tribunal's Decision
Applying the test in the Johnstone Federal Court decision, the Court found that Seeley was able to satisfy all four aspects of the test. Seeley had a legal obligation to care for her child, she was unable to find reasonable alternate childcare arrangements, despite marking reasonable attempts to do so, and the workplace rule infringed in a manner that was more than trivial.
The Court also found that the employer was unable to show that accommodating Seeley would have caused undue hardship. The Court noted that the employer had accommodated other employees in the past, was able to accommodate Seeley, and that such accommodation would not have caused any harm to other employees who had more seniority than Seeley.
The employer in Seeley did not respond to the request for accommodation and provided no details to her regarding the placement in Vancouver. The Court found that the 30 day extension granted was not sufficient to be considered accommodation.
When faced with an employee's request for an accommodation relating to childcare needs, in order to satisfy the procedural duty to accommodate, the employer must make efforts to investigate the circumstances of the employee in order to determine if accommodation is possible. Conversely, in order for an employee to establish a case of discrimination on the basis of family status, the employee must first demonstrate that he/she has attempted to self-accommodate by seeking out alternate arrangements.
Johnstone has clarified that an employee cannot simply expect that the employer is going to provide a requested accommodation; he or she must demonstrate to the employer that reasonable efforts have been made and that no solution is reasonably accessible.
If an employee has demonstrated a reasonable attempt to self-accommodate and the employer denies the request for accommodation, in order to be successful, the employer must establish that the accommodation would have caused undue hardship.
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.