Canada: What Do I Do With The Kids? Finding A Reliable Babysitter – Now An Employer Issue

Last Updated: December 17 2014
Article by Michelle McCann

Employers are prohibited from discriminating against employees based on "family status" under the Human Rights legislation in every Canadian jurisdictions, except in New Brunswick. Although the legislation across jurisdictions is fairly similar, until this year there has been widespread debate about if, and when, an employee's child care obligations can trigger the duty to accommodate.

After a decade of uncertainty, the decision Canada (Attorney General) v. Johnstone provides employers with some clarity.

What happened?

Ms. Johnstone and her husband were both employed by the Canadian Border Services Agency ("Agency"). The Agency rotates its permanent full-time employees through various shift schedules, including weekends and evenings, with no predictable pattern. Employees were given 15 days notice of each new shift schedule.

Ms. Johnstone took extensive steps to find reliable child care for their two young children, including investigating many registered and unregistered child care providers, consulting with family, and examining the costs of a live-in nanny.

With no acceptable options which would work with the shift schedule, Ms. Johnstone asked the Agency to place her on a full-time fixed work schedule. The Agency denied the request, on the grounds that it had an unwritten policy requiring full-time employees to work the rotating shifts, and had no obligation to accommodate child care obligations.

Ms. Johnstone filed a complaint with the Canadian Human Rights Commission alleging discrimination on the basis of family status under the Canadian Human Rights Act. 10 years later, after five separate decisions, the matter was ultimately decided by the Federal Court of Appeal.

The Agency's policy was found to be discriminatory and no undue hardship could be established as the Agency had previously accommodated employees, putting them on a fixed schedule. The Court required the Agency to revise its policy and accommodate Ms. Johnstone. Ms. Johnstone was also awarded lost wages and her legal costs.

What child care obligations are protected?

The Court determined that protection against discrimination based on "family status" includes parental obligations that form part of the legal relationship between parent and child – specifically, those obligations "... which a parent cannot neglect without engaging his or her legal liability". For example, the Court said a parent cannot leave a young child at home, unsupervised. Therefore, where a work requirement contributes to a parent's inability to secure reliable child care, that requirement may be discriminatory.

The employee must, however, be able to demonstrate that they have taken reasonable steps to attempt to secure reliable child care before any duty to accommodate is triggered.

What child care obligations are not protected?

The short answer is that obligations that stem from a parent's personal choice are not protected. The Court said:

It is ... important not to trivialize human rights legislation by extending human rights protection to personal family choices, such as participation of children in dance classes, sports events like hockey tournaments, and similar voluntary activities.

The framework for determining whether there has been discrimination

Parental-type obligation: a child must be under the employee's care and supervision.

Legal responsibility: it is the employee's legal responsibility to ensure the child care obligation is met. The child care obligation must be one that is a legal parental responsibility, rather than a personal family choice.

Reasonable efforts have been made by the employee to meet their legal duty: the employee must make reasonable efforts to consider multiple alternative solutions to meet their child care obligations. What is "reasonable" will vary substantially based on the individual circumstances of the employee, the family and the child.

Interference by employer: a workplace rule, policy, procedure, decision, schedule, etc. must interfere with the employee's child care obligations in a manner that is more than trivial or insubstantial.

The Court rejected earlier decisions that required there to be special or extreme circumstances in a family (such as a child's disability), a change made by the employer, or a "serious interference" with child care obligations, before discrimination is found.

How does an employer accommodate child care obligations?

As always, an employer is required to accommodate an employee up to the point of undue hardship and an employee has a duty to participate in his or her own accommodation. There is no one-size-fits-all solution or checklist of steps. Ideally, the employer and the employee will be able to work together to develop a solution that works for both parties. The Court was clear in Johnstone that moving an employee from full-time status to part-time status, if accompanied by loss of salary and benefits, was not an appropriate form of accommodation. Ms. Johnstone had been offered the opportunity to work on a fixed part-time schedule (34 hours per week as opposed to 37.5 hours per week), however this would have required her to take not only a pay cut, but a cut to her full-time benefits. As it placed a financial burden on the parent with the child care obligation, such an offer was found to be discriminatory.

Cases since Johnstone

Most jurisdictions will adopt the Johnstone analysis and has already been applied by the Human Rights Commissions of at least two provinces (as well as a second Federal Court of Appeal decision):

In Canadian National Railway v. Seeley, the Federal Court of Appeal found that CN Rail's refusal to exempt an employee/parent from a temporary transfer to Vancouver was discriminatory based on family status, as CN Rail had failed to consider and accommodate the employee's child care needs. The Court noted that CN's inability to provide her with information about the job in Vancouver – notably, the length of the assignment, her working hours and accommodation arrangements – meant it was not reasonable to require that the employee consider bringing her children with her.

In Clark v. Bow Valley College, the Alberta Human Rights Commission found the College had discriminated against a nursing instructor by refusing to allow her to return to work 27 days after her leave expired when she was unable to locate appropriate child care. The College argued the employee's challenges to finding child care – residing in a small town, driving a car that did not accommodate her child's car seat, not putting her child in a facility with more than a few children to reduce his exposure to illness (medically, the child was particularly vulnerable to illness) her husband continuing to work full-time – were all personal family choices that did not require accommodation. The Commission disagreed, concluding the employee had suffered discrimination.

In Wing v. Niagara Falls Hydro, the Ontario Human Rights Commission also adopted the Johnstone approach, but found that a resolution requiring directors to attend meetings at 3:30 p.m. and be removed from the Board if they missed two consecutive meetings was not discriminatory against a Board member who could not make meetings due to the need to pick her child up from school at 3:45 p.m. and shuttle her to after-school activities. The Commission held that the choices of sending her child to a private school 20 minutes out of town, picking up her child every day, enrolling the child in after-school activities and failing to explore alternative arrangements were all personal choices that prevented a finding of discrimination.

What this means to you?

When an employee comes to you with a child care concern, you cannot dismiss them without determining if accommodation is merited and possible. Some suggested steps include:

Understand the problem. Identify what the employee believes it is about the workplace that is causing or contributing to the child care issue.

Ask for details about the search for child care arrangements. Ask the employee what efforts they have made to obtain child care, why they have not been able to secure reasonable child care, the specific needs of the child, the situation of the family and how long the employee believes they may require some accommodation from the employer. Without these details, an employer cannot assess whether the employee has taken reasonable steps to find a solution before requesting accommodation.

Consider whether the child care "obligation" stems from a personal choice. In most cases, this assessment will not be obvious. If there is any doubt that the issue stems exclusively from a personal choice, seek legal advice or consider accommodation.

Propose alternatives, but don't rush to a solution. If an obvious alternative seems available it is ok to ask the employee to look into it; however, don't assume that suggestion will solve the problem. Instead, maintain an approach that allows the employee to communicate ongoing problems to you, discuss potential solutions with the employee, and review all information given before coming to any final decision.

Document everything. Every conversation, request and proposed solution should be documented, so that there is a record of steps taken by the employer should the matter proceed to a complaint.

Reassess as needed. Once an accommodation is put in place, or another solution has been found by the employee, set a time to follow-up and ensure the steps taken are working for everyone. If they are not, continue working with the employee to search for reasonable alternative solutions, and be open-minded about the role you as employer can play in these solutions.

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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Michelle McCann
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