In recent years a number of cases across Canada have considered the difficult issue of an employer’s obligation to accommodate parental obligations in the workplace. Most recently, in SMS Equipment Inc. v Communications, Energy and Paperworkers Union, Local 707, 2015 ABQB 162, the Court of Queen’s Bench of Alberta upheld an arbitration award finding that an employee was discriminated against on the basis of family status when her employer refused to accommodate a request for a shift change due to her childcare obligations.
The SMS decision confirms the shift across Canada towards providing a broader level of protection for employees with childcare obligations and unfortunately, adds some uncertainty to the proper test required to establish discrimination in these cases.
Renee Cahill-Saunders, a single mother of two, worked as a welder for SMS Equipment Inc. in Fort McMurray, Alberta. Saunders was required to work seven days on and seven days off with rotating day and night shifts. After returning from maternity leave, Saunders requested her shift be changed to straight day shifts on the basis that the night shifts required her to incur significant childcare costs. Saunders explained that it was too expensive to pay for childcare both during the nights while she worked and during the days while she slept. As a result, during a night shift rotation, Saunders looked after the children herself during the day and got very little sleep before her next night shift. Saunders had no family in Fort McMurray and the fathers of her children were not involved in childcare.
In making the request, Saunders informed SMS that she had identified another employee willing to work night shifts exclusively. SMS denied the request. The union brought a grievance on the basis that the employer’s refusal to accommodate was discriminatory on the basis of family status and the grievance proceeded to arbitration.
The Arbitrator held that Saunders had established a prima facie case of discrimination on the basis that the requirement to work night shifts imposed a burden on Saunders that was not imposed on other employees who did not share her status. The Arbitrator further held that SMS had failed to establish that working night shifts was a bona fide occupational requirement. Notably, SMS did not advance any evidence that accommodating the employee would result in undue hardship.
On judicial review of the Arbitrator’s decision, the Court confirmed the virtually unanimous findings across Canada that “family status” properly incorporates parental obligations such as childcare.
With respect to the correct test to establish prima facie discrimination, the Court followed the Supreme Court of Canada’s decision in Moore v. British Columbia (Education), and held that the complainant must show that:
- the complainant has a characteristic that is protected from discrimination;
- the complainant has experienced an adverse impact; and
- the complainant must show that the protected characteristic was a factor in the adverse impact.
Notably, the Court declined to consider what it referred to as the “self-accommodation” element outlined recently by the Federal Court of Appeal in Canada (Attorney General) v. Johnstone. The self-accommodation element in Johnstone requires individuals seeking accommodation on the basis of family status to demonstrate that they have made “reasonable but unsuccessful efforts to meet their childcare obligations through reasonable alternative solutions.”
In rejecting this element as part of the prima facie test, the Court noted that the “self-accommodation” element was “unnecessary and contrary to the objects of human rights law” because it imposed “one-sided and intrusive inquiries” on individuals in family status cases. In this case, the Court held that the self-accommodation element would subject Saunders to “an examination regarding their relationship or lack thereof with the biological fathers of her children, her choice of caregivers for her children and her personal financial circumstances.” The Court concluded that this level of inquiry would deter complainants from pursuing claims for discrimination on the basis of family status.
The Court went on to apply the Moore test and held that the Arbitrator was both reasonable and correct in finding that Saunders had established a prima facie case of discrimination and that SMS had failed to establish undue hardship. SMS was obligated to accommodate Saunders by permitting her to work a straight day shift.
Implications for Employers
Although the SMS decision was made under the Alberta Human Rights Act, employers in Ontario should be aware that this decision creates a potentially more lenient test for individuals to rely on in establishing a prima facie case of discrimination on the basis of family status.
Accordingly, employers should ensure that their accommodation policies incorporate “family status” in a manner that includes a reasonable consideration of childcare needs.
When receiving requests for accommodation, employers must consider each request on its own merits. Employers who conduct a good faith analysis of the true burden of accommodation will be much more successful in addressing and resolving these requests.