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Ontario Employer Advisor Keeping Employers Advised on Developments in Labour and Employment Law

Family Status and Childcare Obligations – The Federal Court of Appeal Weighs In

Posted in Discrimination, Employee Obligations, Family Status, Human Rights, Litigation
Kate McNeill-Keller

On May 2, 2014, the Federal Court of Appeal (FCA) rendered its decision in Canada (Attorney General) v. Johnstone (Johnstone), along with its decision of an appeal in a similar case called Canadian National Railway v. Seeley (Seeley). A full e-alert with our discussion of these cases and the implications for employers can be found here.

Both Johnstone and Seeley involved mothers of young children who requested relief from a workplace schedule or assignment which would have left them without adequate childcare. In Johnstone, the employee worked a rotating shift and requested a fixed work schedule to accommodate her childcare obligations. Although the employer, Canadian Border Services Agency (CSBA), had accommodated other full-time employees in this way, it declined to do so and instead, offered her part-time work which would have negatively affected her benefits, pension and promotion opportunities. In Seeley, the employee worked for Canadian National Railway (CN) and requested an exemption when she was asked to report to Vancouver to cover a labour shortage, claiming that there would be no childcare arrangements available during her absence. CN denied Ms. Seeley’s request and eventually terminated her employment because of her failure to report to work in Vancouver.

Both Ms. Seeley and Ms. Johnstone filed human rights complaints claiming discrimination on the basis of family status contrary to the Canadian Human Rights Act. In both cases, the Canadian Human Rights Tribunal (CHRT) found in favour of the employees. Both CN and CBSA sought judicial review of the CHRT decisions at the Federal Court and subsequently appealed to the FCA.

While the FCA emphasized that human rights law protects an employee’s childcare needs, not preferences, it also expressed its preference for a broader approach to family status discrimination. To that end, the FCA established the following four-part test which a federally regulated employee must meet to make a case of family status discrimination and to trigger an employer’s duty to accommodate:

  1. A parental obligation. The employee must be the parent of the child or otherwise responsible for the child’s care and supervision, such that a failure to meet the child’s needs would engage that individual’s legal responsibility vis-à-vis the child.
  2. A legal obligation. The employee’s childcare obligation must engage his/her legal responsibilities to the child, rather than being merely a personal family choice.
  3. Reasonable efforts. The employee must show that he/she has made reasonable efforts to meet and balance childcare and workplace obligations through reasonable alternative solutions, including childcare providers, family and other possible sources of assistance, and must be able to demonstrate that that no such solution was readily accessible.
  4. Real interference. The workplace rule in question must be shown to interfere with the employee’s fulfillment of their childcare obligations in a manner that is more than trivial or insubstantial.

Where Do Employers Go From Here?

There continue to be divergent views within the provincial and federal jurisprudence regarding the applicable threshold test for establishing a case of discrimination on the ground of family status. Accordingly, employers are still left with multiple standards to consider. Although employers should ultimately seek guidance from the jurisprudence of the jurisdiction in which they operate, administrative tribunals, courts and arbitrators regard human rights jurisprudence from other provincial and federal authorities as persuasive, particularly when it originates from an appellate court such as the FCA. Therefore, the FCA’s decisions in Johnstone and Seeley should be considered by employers in their accommodation processes.

While the case law continues to develop and as we wait to see whether the Supreme Court of Canada will rule on the matter, what remains clear is that accommodation on the basis of family status must be attempted in good faith by all parties. The facts in both Johnstone and Seeley indicate that the employers fell short in searching for a reasonable solution for its respective employee. An employer’s duty to accommodate requires a fulsome examination of the unique facts and circumstances of each case. Employers are well advised to be open to hearing employees’ issues and discussing flexible options when work requirements have a serious, negative impact on an employee’s family obligations. Similarly, accommodation continues to be a “two-way street”: employees, too, have an obligation to pursue reasonable solutions to a conflict. This should be insisted by employers when managing family status issues.