The Federal Court of Appeal has upheld the Public Service
Labour Relations and Employment Board's (the "Board")
decision that refusing an employee's request to telework
fulltime so that she could continue to breastfeed her child was not
The right to breastfeed in public has made headlines of late,
but the Federal Court of Appeal's decision in Flatt v.
Attorney General of Canada, 2015 FCA 250 makes it clear that
choosing to breastfeed in most instances is just that – a
choice, and not one that will necessarily be protected by human
rights legislation in the context of work obligations.
Ms. Flatt is a unionized employee of the Treasury Board of
Canada (the "Employer"). When her third child was born
she took a oneyear maternity leave. Following this leave, she
requested permission to "telework" (i.e. work from home
or an office closer to her home) fulltime so that she could
continue to breastfeed her child for one year. The Employer had a
telework policy that permitted some employees to telework for part
of the workweek, which Ms. Flatt had utilized following the births
of her first two children.
The Employer refused Ms. Flatt's request to fulltime
telework. The parties attempted to arrange a work schedule that met
both their needs, but ultimately were unable to agree. Ms. Flatt
filed a grievance claiming that the Employer had discriminated
against her on the basis of sex and family status when it refused
to permit her to telework full-time so that she could breastfeed
The Board dismissed the grievance, finding that breastfeeding
was not "immutable", but was a personal choice. Ms. Flatt
sought judicial review of the Board's decision. Ms. Flatt
argued that breastfeeding is part of a mother's legal
obligation to nourish her child and thus the Employer's refusal
to permit her to telework from home was discriminatory.
The Court concluded that to make a case of discrimination on the
basis of sex or family status related to breastfeeding, proper
evidence would be required. The purpose of such evidence was to
establish that returning to work was incompatible with
In this case the Court noted that Ms. Flatt had
provided no evidence that her child had a particular need or
medical condition that required breastfeeding. She provided no
evidence that she could not express her milk nor explain why the
child could not receive expressed breast-milk from a bottle.
The Court concluded that Ms. Flatt's evidence did meet the
second element of the family status test – that breastfeeding
during work hours is a legal obligation – and concluded that
breastfeeding in this case was a personal choice. The Court held
that Ms. Flatt also failed to show that she had made a reasonable
effort to meet this legal obligation. When negotiations with her
Employer failed, she simply abandoned the process and filed a
grievance, reverting to her original request for full-time
The Court made note that its decision should not be
understood as trivializing breastfeeding, which is a commendable
choice. Rather, the Court emphasized that "[i]n the case of
breastfeeding, the onus is on the workingoutside- the-home mother
to make a prima facie case of discrimination. Unfortunately in this
case, the applicant failed." The Court dismissed the review
Lessons for Employers
When faced with an accommodation request for breastfeeding, the
employee will need to provide evidence that breastfeeding is
required, such as medical evidence that the child specifically
requires breastmilk as opposed to formula or other types of
The employee will also need to provide evidence of the
alternate arrangements she has considered to meet the requirement
to breastfeed. Children can be bottle-fed by others from milk the
mother has expressed.
This case illustrates that the most reasonable position tends
to prevail. Ms. Flatt took an unreasonable position: that she
should be permitted to telework full-time. While in this case the
issue of accommodation did not arise because Ms. Flatt could not
prove prima facie discrimination, her position that working from
the office at all was incompatible with breastfeeding was
unreasonable and not supported by the evidence.
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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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