The Federal Court of Appeal (FCA) recently confirmed that "family status" includes childcare obligations and provided clarity for employers on the test for whether the duty to accommodate has been met. While the decisions in Canada (Attorney General) v Johnstone, 2014 FCA 110, and Canadian National Railway Company v Seeley, 2014 FCA 111, are particularly relevant to federally regulated employers, they still include valuable lessons for provincially regulated employers.
In both cases, the Canadian Human Rights Tribunal initially found that employers had discriminated against their employees based on family status by refusing to accommodate the employees' childcare obligations. The Tribunal's decisions were upheld by the Federal Court of Canada and the employers appealed to the FCA.
In the first case, Ms. Johnstone, a Canada Border Services Agency (CBSA) officer who worked rotating shifts at Pearson International Airport in Toronto, requested accommodation on the basis of childcare responsibilities after the birth of her first child. Specifically, Ms. Johnstone requested she be entitled to work three static 13-hour shifts a week to facilitate childcare arrangements while still enabling her to work full-time for the purpose of qualifying for pension and other benefits. The CBSA denied her request, offering her the option to work static part-time shifts. Ms. Johnstone alleged the CBSA discriminated against her on the basis of her family status because she was forced to reduce her status to part-time and that it had failed to accommodate her notwithstanding that other employees had been accommodated (on the basis of disability or religion) with static full-time shifts.
In the second case, Ms. Seeley requested accommodation on the basis of her childcare responsibilities after her employer, Canadian National Railway (CNR), requested that she temporarily relocate from Alberta to Vancouver to cover a staff shortage. CNR's request posed a problem for Ms. Seeley as she was not able to arrange for adequate childcare during her absence. Initially, Ms. Seeley requested an extension of time to relocate to Vancouver and then eventually requested that she be exempted from having to relocate to Vancouver due to her childcare obligations. Although CNR granted Ms. Seeley an extension of time, Ms. Seeley was eventually dismissed for failing to relocate to Vancouver. Ms. Seeley alleged the CNR discriminated against her on the basis of her family status because her requests for accommodation were not granted even though other employees with medical conditions had been accommodated in the past.
Family Status Includes Childcare Obligations
In contrast to the Ontario Human Rights Code, "family status" is not defined in the Canadian Human Rights Act. Accordingly, the first question the FCA considered in Johnstone and Seeley was the meaning and scope of "family status" as a prohibited ground of discrimination. After reviewing recent case law, the FCA interpreted "family status" broadly to include childcare obligations. Childcare obligations for the purposes of family status "are those which a parent cannot neglect without engaging his or her legal liability"[i] and do not include personal choices, such as enrolling a child in dance classes or karate. In other words, the FCA confirmed that employers must accommodate an employee's childcare needs not preferences.
Four-Part Test to Find Family Status Discrimination
The next question the FCA considered was the appropriate legal test to apply to find a prima facie case of family status discrimination. After considering recent case law, the FCA stated that a complainant advancing a claim of family status discrimination under the Canadian Human Rights Act must meet the following four-part test:
- Child is under his or her care or supervision;
- Childcare obligation engages the individual's legal responsibility for that child (as opposed to a personal choice);
- Complainant made reasonable efforts to meet that childcare obligation through reasonable alternative solutions, and that no such alternative solution is reasonably accessible; and
- Workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation.[ii]
When applying the test, the FCA clarified that accommodation is a multi-party process pursuant to which a complainant must show "that neither they nor their spouse can meet their enforceable childcare obligations while continuing to work, and that an available childcare service or an alternative arrangement is not reasonably accessible to them so as to meet their work needs."[iii]
The FCA did not explain the types of evidence that will satisfy the four-part test but rather stated that the test is a flexible test to be determined on a case-by-case basis.[iv] If an employee satisfies the four-part test, an employer's duty to accommodate will be triggered.
Practical Implications for Employers
If your business is federally regulated, the Johnstone and Seeley decisions will, subject to potential appeal, be binding upon your business. Although these decisions are technically not binding on provincially regulated employers in Ontario, these decisions are still instructive on how Ontario courts and arbitrators will assess an employer's efforts to accommodate family status. The analysis is in fact similar to the "needs vs. preferences" discussion in the Ontario Human Rights Tribunal's decision in Devaney v ZRV Holdings Limited, 2012 HRTO 1590.
Below are some practical tips to consider:
- Take requests seriously: Employers must take all requests for accommodation due to childcare obligations seriously. Employers must take steps to gather information about an employee's childcare obligations and must make a good faith effort to accommodate those obligations.
- Request evidence of self-accommodation: The duty to accommodate an employee's childcare obligations will only be triggered after an employee has exhausted all reasonable alternatives of accommodation. As such, it is appropriate for employers to require employees to provide evidence that they have attempted to self-accommodate before workplace modifications need to be made, including for example, asking for a summary of the names of all daycare or after school programs to which the employee contacted or applied.
- Update workplace policies and practices: Employers should consider updating their workplace policies and practices to allow employees with childcare obligations to work from home or to work flexible hours where possible.
Please feel free to contact us if you require more information.
[i] Johnstone at paragraph 70.
[ii] Ibid at paragraph 93.
[iii] Ibid at paragraph 96.
[iv] Ibid at paragraphs 98-99.