With an increase in the number of dual-income households in Canada, it is not surprising that employers are facing growing demands from workers for flexible work regimes that allow for the fulfillment of childcare obligations. As many parents struggle to meet both work and family obligations, Canada's legal perspective on the duty to accommodate has expanded, placing an increased onus on employers to accommodate family status, both federally under the Canadian Human Rights Act, RSC 1985, c H-6 (Act), and provincially under relevant human rights legislation.
In Canada, employers are subject to extensive obligations to accommodate employees. Canadian employers must take steps to eliminate differential negative treatment of individuals on the basis of certain protected grounds.1 The law in Canada recognizes that differential treatment on one of these grounds may, on occasion, be necessary in the employment context. When this is the case, employers have a duty to accommodate the affected employee(s) up to the point of undue hardship.
In Canada, the legal duty on employers to accommodate an employee to the point of undue hardship on the basis of family status now imposes an obligation to accommodate childcare responsibilities. Recent Federal Court of Appeal jurisprudence outlines how far employers must go before they can be said to have met their duty to accommodate. In Canada (Attorney General) v. Johnstone, 2014 FCA 110, the Federal Court of Appeal agreed with the Canadian Human Rights Tribunal (CHRT) that the Canadian Border Services Agency (CBSA) discriminated against Fiona Johnstone on the basis of family status when it refused to accommodate her childcare obligations through flexible work arrangements.2
Ms. Johnstone was employed on a full-time basis by CBSA at the Pearson International Airport in Toronto, Ontario. Her work schedule was based on a rotating 56-day shift plan whereby she alternated between six different start times with no predictable pattern. Upon the birth of her first child, Ms. Johnstone went on maternity leave. Prior to returning from leave, she requested a static work schedule on a full-time basis. She requested this schedule to accommodate her childcare arrangements. The CBSA took the position that it had no legal duty to accommodate childcare responsibilities and offered Ms. Johnstone static shifts for 34 hours per week, resulting in her becoming a part-time employee. Full-time employees were required to work 37.5 hours per week. Employees working less than 37.5 hours per week were considered part-time and received fewer employment benefits, specifically with respect to pension entitlements and promotion opportunities.
Ms. Johnstone filed a complaint with the Canadian Human Rights Commission (CHRC), claiming discrimination on the basis of family status. Her claim was brought pursuant to the provisions of the Act identifying family status as a protected ground. The CHRC initially dismissed the complaint, finding that the CBSA's actions did not amount to discrimination on the basis of family status. Ms. Johnstone sought judicial review and the Federal Court remitted the complaint back for a decision by the CHRT.
The CHRT found that the prohibited ground of discrimination on the basis of family status includes family and parental obligations, such as childcare obligations. The CHRT rejected the CBSA's argument that the definition of family status was limited to the status of being in a family relationship and found in favor of Ms. Johnstone, finding the case prima facie discrimination.
The CBSA sought judicial review of the CHRT's decision to the Federal Court of Canada. The Court dismissed the application, with the exception of the issue of the damages award, which was remitted back to the CHRT for consideration. The CBSA further appealed to the Federal Court of Appeal.
The Federal Court of Appeal affirmed that family status as defined by the Act incorporates childcare obligations and articulated the test to be applied when considering a case of prima facie discrimination on the basis of childcare obligations. Under this test, discrimination will be found when an employee demonstrates that a child is under his or her care and supervision, that there is a child care obligation(s) which engages his or her legal responsibility for that child, that the employee has made genuine efforts to meet those obligations through reasonable alternative solutions and that the impugned workplace rule interferes in a manner that is more than trivial with the fulfillment of the childcare obligation(s).
The Court was clear that the childcare obligation(s) at issue must be those which a parent cannot neglect without engaging their legal responsibilities for the child. In this regard, the Court drew a distinction between family choices and parental obligations. The Court also found that the test requires employees to show they have made a sincere effort to secure childcare arrangements that do not require employer accommodation. While each case will turn on its specific facts, this may include investigating regulated and non-regulated childcare providers, both near the employee's home and work. It may also include steps such as canvassing family members to determine if childcare obligations can be met, or exploring live-in care providers. However, when such reasonable steps fall short of allowing an employee to meet his or her child care obligations, the onus will fall to the employer.
When applied to Ms. Johnstone, the Court found she was legally responsible for two children and that she had made a reasonable but unsuccessful effort to secure alternative childcare arrangements that would allow her to work the rotating shift schedule at the CBSA. In particular, Ms. Johnstone had explored regulated and non-regulated child care arrangements, but none could accommodate a rotating work schedule. Furthermore, live-in care was not an option as Ms. Johnstone's house could not accommodate another adult person. Lastly, the Court found that the rotating shift schedule imposed by the CBSA interfered with Ms. Johnstone's childcare obligations in a more than trivial manner. The result was a finding that the CBSA had discriminated against Ms. Johnstone on the basis of family status due to her childcare obligations.
Although Johnstone dealt with a federally regulated employer, provincial human rights tribunals seem to be adopting the Federal Court of Appeal's ruling.3 As such, in Canada both federally and provincially regulated employers ought to be mindful of the onus on them to accommodate childcare obligations to the point of undue hardship. With this in mind, employers in Canada need to carefully review their policies and ensure they are meeting this onus. The test articulated by the Court should provide a clear framework for Canadian employers, who at the very least will be better able to understand when discrimination on the basis of childcare obligations has been engaged. While an employee who claims discrimination on the basis of childcare obligations must demonstrate that they have sought reasonable alternative childcare solutions, once such an effort has been established, it will be up to the employer to show that it could not accommodate the employee's childcare obligations without experiencing undue hardship. Where an employer cannot demonstrate this, there will be a finding of prima facie discrimination.
1 Such protected grounds include race, ethnic or national origin, color, religion, age, sex, sexual orientation, disability, a conviction where a pardon has been granted or a record suspended, marital status and family status. The protected grounds vary by jurisdiction in Canada, according to the relevant human rights legislation.
2 See also Seely v. Canadian National Railway, 2014 FCA 111.
3 See, for example, Clark v. Bow Valley College, 2014 AHRC 2014 and Wing v. Niagara Falls Hydro Holding Corporation, 2014 HRTO 1472, adopting the test set out in Johnstone.
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