"Modern family": The Federal Court recognizes an employer's duty to accommodate childcare obligations 

publication 

February 2013

Employment and Labour Bulletin

As the show "Modern Family" demonstrates, families are complicated, diverse and demanding (but not necessarily with the same humourous results as a TV sitcom). Employees and employers continue to struggle to find a balance between employment obligations and family responsibilities. The recent decision of the Federal Court in Attorney General of Canada v Johnstone1 ("Johnstone"), indicates that employers are required to adjust to this new landscape and accommodate an employee's "routine" childcare obligations.

background

Ms. Johnstone was employed by the Canada Border Services Agency (the "CBSA"). After the birth of her children, she asked the CBSA to provide her with a full-time, fixed day shift so that she could manage her childcare arrangements. While fixed day shifts were available to part-time workers, the CBSA had an unwritten policy that full-time officers, like Ms. Johnstone, must work a rotating shift schedule. The CBSA was willing to provide Ms. Johnstone with a part-time shift, but transferring to part-time had a negative impact on Ms. Johnstone's earnings and eligibility for benefits and pension.

Ms. Johnstone brought a complaint under the Canadian Human Rights Act, alleging that the CBSA's conduct was discriminatory on the basis of family status. The Canadian Human Rights Tribunal found in favour of Ms. Johnstone and the CBSA appealed the Tribunal's decision to the Federal Court.

what is family status?

The scope of "family status" has been the subject of a number of provincial and federal court and tribunal decisions, leaving employers unclear on what relationships and obligations are included under the ground of family status, as protected by provincial and federal human rights legislation.

The Act does not contain a definition of family status. The Tribunal in Johnstone held that family status is not limited to the identification of relationships, but also includes the needs and obligations flowing from those relationships, including childcare obligations. The Federal Court upheld the Tribunal's interpretation of family status, finding that it was reasonable and consistent with the purpose of the Act.

discrimination on the ground of family status

Having found that childcare obligations are included in the scope of family status, the Court reviewed what would constitute discrimination on the grounds of family status when it came to childcare obligations.

There are a number of decisions from provincial tribunals and courts that are not easy to reconcile. A relatively restrictive test was established in the British Columbia Court of Appeal decision of HSABC v Campbell River & North Island Transition Society.2 In Campbell River, the Court of Appeal found that for a prima facie case of discrimination to be made out, a change in employment terms must result in a "serious interference with a substantial parental or other family duty."3

In contrast, a broader test was applied in the Ontario Human Rights Tribunal decision of Devaney v ZRV Holdings Limited.4 The Devaney ruling held that any genuine inability to work due to family care responsibilities places a duty on an employer to investigate the basis for the request for accommodation and consider how accommodation will be achieved.

In Johnstone, the Federal Court took a position closer to Devaney, holding that the "serious interference" standard in Campbell River was too high a threshold that would lessen the protection for family status relative to other prohibited grounds of discrimination. The Federal Court held that the question to be asked is whether the employment rule "interferes with an employee's ability to fulfill her substantial parental obligations in any realistic way."5

In finding that parental childcare obligations are a component of "family status" for the purpose of the Act, and that inflexible rotating shift requirements interfered with Ms. Johnstone's ability to fulfill these obligations, the Court upheld the Tribunal's finding of prima facie discrimination.

Similar to the Tribunal in Devaney, it is important to note that the Court in Johnstone was critical of the CBSA's failure to make efforts to accommodate Johnstone's request as well as its "unwritten policy" to not provide full-time day shifts to employees.

what this means for employers

As the Johnstone decision dealt with the Act, its application is, in theory, restricted to federally-regulated employers. However, the Johnstone decision highlights the move towards providing a broader level of protection for employees with childcare obligations. As a result, employers are likely going to face more requests from employees for accommodation in scheduling.

Rather than a worker having to demonstrate unusual needs to warrant accommodation, Johnstone suggests that the onus may be shifting to employers to accommodate employees where their parental childcare arrangements may simply be difficult or impractical. The implications of these decisions are particularly acute for employers of shift workers. Many rotating shift workers will prefer a fixed daytime shift to manage childcare obligations.

Employers should review what policies they have in place for accommodating changes to an employee's schedule when faced with these types of requests. Legal counsel should be sought prior to denying an employee's request for accommodation to ensure that the employer has met its obligations under applicable human rights legislation.

by Dave McKechnie and Tim Hughes, student at law

1 Attorney General of Canada v Johnstone, 2013 FC 113.

2 Health Sciences Association of BC v Campbell River and North Island Transition Society, 2004 BCCA 260. 

3 Ibid at para 39.

4 Devaney v ZRV Holdings Limited, 2012 HRTO 1590. [see: an update on family status discrimination]

5 Supra note 1 at para 128.

cautionary note

The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

© McMillan LLP 2013