In a recent decision on family-status discrimination, the Federal Court of Appeal confirmed that employers in Canada are required to accommodate employees’ childcare obligations but not their voluntary parental choices, such as extracurricular or recreational activities.
Significance
Prior to this decision, there were two conflicting approaches to family-status discrimination in Canada: a broad approach set out by the lower court in this case and a more restrictive approach set out by the British Columbia Court of Appeal, which required an employee to demonstrate both a change to employment terms and a serious interference with a substantial parental obligation.
While the Federal Court of Appeal has now affirmed a more expansive approach to family-status discrimination, it has also established some important boundaries around the term “family status.” In doing so, the court has clearly indicated that employees must first try to resolve conflicts between their family and work obligations themselves before turning to their employer for assistance. This is a welcome development for employers.
Background and decision
On May 2, 2014, the Federal Court of Appeal released Canada (Attorney General) v. Johnstone, its long-awaited decision on family-status discrimination.
Fiona Ann Johnstone and her husband were both employed by the Canadian Border Services Association (CBSA) and were both subject to a complex rotating shift system that was subject to change on five days’ notice. This resulted in an unpredictable and inconsistent work schedule.
As Johnstone was unable to secure child care that accommodated this schedule, she asked the CBSA for a fixed full-time schedule. The CBSA declined her request and instead offered her a fixed part-time schedule. While the CBSA had previously accommodated the scheduling restraints of other employees because of their medical limitations or religious beliefs, it had an unwritten policy that it would grant fixed work schedules to employees with childcare obligations only if the employees agreed to part-time status.
In its decision, the Federal Court of Appeal agreed with the lower court that the test for family-status discrimination should be similar to the test applied to the other prohibited grounds of discrimination. The court stated that this was important in order to ensure that all prohibited grounds were treated equally before the law and to avoid a hierarchy of human rights.
However, the court also established boundaries for family-status discrimination by distinguishing parental obligations from parental choices and by requiring that employees seeking accommodation for family-status matters first try to reconcile their family obligations with their work obligations. It established the following four-part test for prima facie family-status discrimination, requiring an employee to show:
“(i) that a child is under his or her care and supervision; (ii) that the childcare obligation at issue engages the individual’s legal responsibility for that child, as opposed to a personal choice; (iii) 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 (iv) that the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation.”
If an employee is able to meet this test, the employer must then respond by demonstrating that its work rule or condition is a bona fide occupational requirement and that the employee cannot be accommodated short of undue hardship.
Applying these principles to the facts, the court concluded that the CBSA had discriminated against Johnstone on the basis of family status. However, the court was not required to analyze the CBSA’s response as the CBSA did not present any evidence on appeal that its scheduling practices were a bona fide occupational requirement or that it would constitute undue hardship for the CBSA to accommodate Johnstone.
It will be interesting to see whether the CBSA seeks leave to appeal this case to the Supreme Court of Canada, which has not yet had the opportunity to consider the issue of family-status discrimination. We will keep you updated on further developments.
