On May 2, 2014, the Federal Court of Appeal released its much
anticipated decision in Canada (Attorney General) v. Johnstone
("Johnstone"). In the decision, the court clarified
both the scope of the "family status" protection found
under the Canadian Human Rights Act and the legal test
that must be met before an employer's duty to accommodate can
Background of Johnstone case
Johnstone involved a mother seeking accommodation for
childcare obligations from her employer, Canadian Border Services
Agency ("CBSA"). Ms. Fiona Johnstone, who along with her
husband worked rotating, irregular, and unpredictable shifts,
sought a fixed three-day schedule so that she could more easily
plan for the childcare needs of her two young children. Similar
accommodation had been provided in the past by CBSA to employees
who had made medical and religion based accommodation requests.
The CBSA agreed to give Ms. Johnstone a fixed schedule on a part
time basis only, thereby negatively impacting her access to
benefits, pension, and promotion opportunities. Ms. Johnstone filed
a human rights complaint based on family status. In defence, CBSA
claimed that it had no legal obligation to accommodate Ms.
Johnstone. The CBSA did not make an undue hardship argument or a
bona fide occupational requirement claim.
The Federal Court of Appeal Decision
The Court agreed that family status includes childcare
obligations, but clarified the scope of the protection. The Court
noted that the ground only protects an individual's
"immutable or constructively immutable" characteristics,
meaning that the protection is only triggered when a parent's
legal responsibility is engaged. A parent's individual
choices are not protected.
The Court found that while there is no hierarchy in grounds of
discrimination, the threshold test to establish prima facie
discrimination is flexible and contextual. The Court created a
four-part test that a federally regulated employee must meet to
make out a prima facie case for family status discrimination and to
trigger an employer's duty to accommodate:
Parental obligation. The person making the
claim for protection must be a parent or responsible for a
child's care and supervision.
Legal obligation. The accommodation sought
must be for a legal responsibility to the child; not just
a personal choice.
Reasonable efforts. A responsible effort must
have been made to secure alternative means to meet the childcare
Real interference. The interference created by
the workplace rule must be more than trivial or insubstantial.
Based on these four factors the Court found that discrimination
occurred in Ms. Johnstone's case.
Impact of Johnstone Decision on Employers
The decision in Johnstone limits the scope of
protection provided by family status by clarifying that employees
may only seek accommodation for childcare obligations that engage
their legal obligation to a child. The decision will be binding on
federally regulated employers covered by the Canadian Human
Rights Act. It will also be highly influential at the
While we wait for the Supreme Court of Canada to weigh in,
employers should continue to take employee requests for family
status accommodation seriously and attempt to accommodate those
requests in good faith. Employers should have a general policy for
accommodation, but should also pay special attention to the facts
of each accommodation request and attempt to accommodate the
specific needs of each employee. Employers should keep track of all
steps taken to accommodate the employee. However, accommodation is
still a "two-way street", and so employees must also make
reasonable efforts to seek alternative means for satisfying their
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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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