The law regarding the duty of employers to accommodate the
family-related needs of employees has been evolving over the past
few years. Courts and tribunals have grappled with where the
balance lies between family and work obligations; and where the
duty to accommodate begins. On May 2, 2014, the Federal Court of
Appeal released two anticipated decisions on this point, Canada
(Attorney General) v Johnstone (Johnstone) and
Canadian National Railway v Seeley (Seeley).
The facts in both cases are similar: the employee, a mother of
young children, asked her employer to alter her schedule or
assignment to ensure her children were provided with adequate
childcare. These requests were denied. Both mothers filed
complaints which were ultimately addressed by the Canadian Human
Rights Tribunal (CHRT). The CHRT found that the employer had failed
to accommodate and had engaged in discrimination based on family
status, contrary to the Canadian Human Rights Act. The
decisions were judicially reviewed, and in both cases the Federal
Court upheld the CHRT's decision. The Federal Court's
decision was appealed to the Federal Court of Appeal (FCA), which
dismissed the employers' appeals, upheld the CHRT's
decision, and discussed an employer's duty to accommodate
Legal Test To Trigger An Employer's Duty To Accomodate
The FCA first outlined the two-part test to determine whether
there is discrimination on the prohibited ground of family status.
First, the complainant must make a prima facie case of
discrimination. Second, the onus shifts onto the employer, who must
demonstrate that the policy is a bona fide occupational
requirement, and that accommodation would amount to undue hardship.
To make out a prima facie case, the individual advancing
the claim must show:
(i) that a child is under his or her
care and supervision;
(ii) that the childcare obligation at issue engages the
individual's legal responsibility for that child, as
opposed to a personal choice;
(iii) 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
(iv) that the impugned workplace rule interferes in a manner
that is more than trivial or insubstantial with the fulfillment of
the childcare obligation.1
The prima facie case must be analyzed in a flexible and
contextual manner. While specific examples of what type of
evidence would meet the newly articulated four-factor test was not
provided, the court suggests a case-by-case approach.
Furthermore, the FCA underscored that the spirit of human
rights legislation must be kept in the foreground, and should be
interpreted broadly, purposively, and flexibly. Although
Johnstone and Seeley relied on the Canadian
Human Rights Act, they provide persuasive arguments for claims
arising out of the Ontario Human Rights Code.
Aftermath And New Path For Employers
The Ontario Human Rights Code defines "family
status," while the Canadian Human Rights Act does
not. These recent cases make it clear that family status includes
family and parental obligations, which extends to childcare
obligations. However, the FCA also makes it clear that only needs
(and not preferences) must be accommodated.
Federally regulated employers will be bound by the decisions in
Johnstone and Seeley. Employers regulated by
Ontario legislation do not technically fall under the same legal
scope, but it would be prudent of all employers to ensure that
their family status accommodation efforts meet the thresholds
annunciated in Johnstone and Seeley. When
considering the duty of accommodation of family status, employers
Investigation: Initiate a genuine and good faith investigation
of each request by engaging in meaningful dialogue with the
Cooperation: When appropriate, develop an accommodation
strategy with the employee to ensure the needs of both parties are
Flexibility: Create and administer policies that are flexible,
update outdated workplace policies; and consider all the possible
options, while keeping in mind the demands of the work in
Follow-up: Check in with your employee periodically, evaluate
the success of the accommodation strategy, and make adjustments
Documentation: Ensure all the requests made by employees
and responsive steps taken by the employer, as well as the
reasoning behind such decisions, are documented in detail; and
Evidence: Collect information, objective evidence, and
documentation demonstrating undue hardship, such as a change in
productivity; and bona fide occupational
Prepared with the assistance of Cassandra Da Re,
1 Johnstone, para 93.
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.
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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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