Canada: Human Rights Panel Allows Employee To Take Entire Summer Off Work To Care For Child With Disability

Last Updated: June 2 2016
Article by Brian Silva

In a recent human rights decision, the Northwest Territories Human Rights Adjudication Panel (the "Panel") pushed the boundary of what is considered reasonable accommodation of an employee's childcare obligations.

In A.B. v City of Yellowknife, the complainant, referred to as "A.B." in the decision, worked full-time as a booking clerk for the City of Yellowknife (the "City"). A.B. had a child who had been diagnosed with autism spectrum disorder. In March of 2012, she asked the City for the summer off work, without pay, to care for her child during school's summer vacation.

Despite allowing A.B. to have the 2011 summer and winter school breaks off for the same reason, the City was not prepared to grant A.B.'s request for 2012's summer break and instead proposed schedules that would allow A.B. to work evenings and weekends. When the parties were unable to reach an agreement on scheduling, A.B. resigned and brought a claim of discrimination against the City based on the Code ground of family status.

At the hearing, A.B. argued that she was the primary caregiver with legal obligations to ensure her child's development. She took the position that despite arranging their schedules as best they could, her and her husband could not adequately care for their child during the summer and that other arrangements were not available. For instance, the Northwest Territories Disabilities Council could not support A.B.'s child in its summer camps because of the child's complex needs and behavioural risks. During the school year, the child was supported daily by his teacher and two additional education assistants, but no such supports were available for the summer months. A.B. added that working in the summer, even if just on evenings and weekends, would preclude her from things such as "having date nights with her husband" or "having a family vacation".

The City recognized that A.B. had a child with significant childcare needs not easily supported in Yellowknife. However, the City argued that the respondent was asserting preferences and not legal requirements, and maintained that it fully accommodated A.B. by proposing schedules on evenings and weekends. The City argued further that by having insisted on one and only one accommodation, A.B. failed to engage meaningfully in the search for accommodation and chose instead to resign of her own volition.

At the hearing, the City gave evidence that it had approximately 188 full-time and 40 part-time employees with 20 to 25 additional casual hires during each summer. There were normally four to five casual cashiers working where the booking clerk position was located. One of the City's witnesses estimated it would take about 29 hours to train a casual cashier to the level where he or she could perform A.B.'s duties effectively.

Prima Facie Case

With human rights complaints of discrimination based on childcare obligations, the Panel must first determine whether the complainant has made out a prima facie case of family status discrimination. To do so, the individual advancing the claim must demonstrate the following:

  • That a child is under his or her care and supervision;
  • That the childcare obligation at issue engages the individual's legal responsibility for that child, as opposed to a personal choice;
  • 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
  • That the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation.

The Panel in this case found that a prima facie case of discrimination was made out. A.B.'s child was under her care and supervision, and this obligation was a legal responsibility. In the circumstances, A.B. was engaged in fundamental childcare activities and would be legally accountable if she failed to fulfill the obligations she had undertaken as the primary caregiver. A.B. also made attempts to arrange her and her husband's work schedules to care for her child, satisfying the reasonable efforts requirement. As well, the Panel found that working for even 20 hours per week would have interfered with A.B.'s childcare obligations in a more than trivial way, because she was the child's primary caregiver, and the one person who offered the best chance of allowing the child to function socially.

Bona Fide Occupational Requirement

Once a prima facie case is made out, the onus then shifts to the party responding to the complaint to establish that the workplace rule they are seeking to enforce is a bona fide occupational requirement. In this case, the City was required to establish that it needed A.B. to work the summer of 2012 for a reason rationally connected to a legitimate work-related purpose.

The Panel found that A.B.'s childcare needs were no less in 2012 than they were in 2011 when the City allowed A.B. to have both the summer and winter breaks off, and that the City's circumstances had not changed in terms of the number of employees on staff, hiring practices or operational needs. The Panel therefore held that the City did not establish that its treatment of A.B. was made in an honest and good faith effort to fulfill a legitimate work-related purpose.

Accommodation to the Point of Undue Hardship

Finally, the Panel must determine whether a responding party has accommodated the complainant to the point of undue hardship. In this case, the City would have had to demonstrate that its efforts to accommodate A.B by offering her evening and weekend schedules were reasonable and that allowing A.B. to have the summer off work would constitute undue hardship for the City.

The Panel found that there were several casual cashiers who could have been trained to fulfill the responsibilities of the bookings clerk. The Panel determined that the 29 hours it would have taken the City to train a casual cashier to perform A.B.'s duties effectively was not excessive. The panel therefore held that the complainant's request for the summer of 2012 off work would not have imposed an undue hardship on an organization with the size and capacity of the City and that A.B.'s proposal was entirely within the range of reasonable or practicable options.

While the Panel ruled that the City subjected A.B. to discrimination on the basis of family status and that it failed to meet its duty to accommodate, the parties did not make submissions on the appropriate remedy and so the Panel was not in position to make such an award. Once the Panel hears the parties' submissions as to remedy and hands down an award, CCPartners will update its readers.

Take-Away for Employers

Employers should take note that what might have been considered absurd a short time ago in terms of accommodating family issues may no longer be considered so. This case highlights that all accommodation issues and requests need to be addressed and thoroughly investigated before being dismissed as unreasonable.

This case also stands for the proposition that if an employer provides a specific accommodation to an employee, that same accommodation will be required moving forward should the circumstances of the parties remain the same.

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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Brian Silva
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