On May 2, 2014, the Federal Court of Appeal (“FCA”) revisited what has been dubbed “the Johnstone” and “the Seeley” family status decisions. As most readers will recall these decisions confirmed that employers have an obligation to accommodate the childcare needs of employees under the “family status” protection found in the Canadian Human Rights Act (and, thus, provincial human rights legislation that lists “family status” as a protected ground). This case comment will review what the FCA said in Johnstone. The full FCA decisions are available here at Johnstone and Seeley.
A bit of background…
What was the discriminatory practice in the Johnstone decision?
In the Johnstone decision, the discriminatory practice happened when Ms. Johnstone contacted her employer before returning from her first maternity leave and asked for changes to her rotating shift schedule at Pearson International Airport because the rotating shift schedule rotated through six different start times over the course of days, afternoons, and evenings with no predictable pattern. The schedule was based on a 56 day pattern with employees receiving 15 days’ notice of each new shift schedule. Because Ms. Johnstone’s husband also worked a rotating shift schedule, planning for childcare needs was difficult. Previously, employees with medical issues were accommodated by a full-time fixed work schedule as were some employees with religious beliefs. Ms. Johnstone’s employer refused to accommodate employees with childcare obligations claiming that it had no legal duty to do so. In cases like Ms. Johnstone’s, the employer had an unwritten policy that would allow her to work fixed schedules, but only after moving to part-time status (34 hours per week maximum).
Ms. Johnstone filed a human rights complaint based on, you guessed it, family status.
What did the Canadian Human Rights Tribunal say?
The Canadian Human Rights Tribunal found that there was prima facie discrimination and ordered the employer to stop its discriminatory practice:
 This Tribunal finds that the freedom to choose to become a parent is so vital that it should not be constrained by the fear of discriminatory consequences. As a society, Canada should recognize this fundamental freedom and support that choice wherever possible. For the employer, this means assessing situations such as Ms. Johnstone’s on an individual basis and working together with her to create a workable solution that balances her parental obligations with her work opportunities, short of undue hardship.
The employer filed an application for judicial review at the Federal Court.
What did the Federal Court say on judicial review?
The Federal Court said that the Tribunal had reasonably concluded that family status includes childcare responsibilities, since that interpretation was within the scope of the ordinary meaning of the words and was consistent with a number of human rights and labour relations adjudicative bodies having considered the matter. The Tribunal decision, the court said, was consistent with the objectives of the Canadian Human Rights Act.
Previous decisions that said the test for prima facie discrimination was “serious interference” were found unreasonable.
The employer appealed to the Federal Court of Appeal.
What did the FCA say?
The FCA agreed with the Federal Court on the substantive issues but tweaked the remedies. Leaving aside the “test” for standard of review and remedies issues for the purpose of this case comment, the FCA added its own comments to important considerations identified by the Federal Court that employers should be aware of including (a) does family status include childcare obligations?, and (b) what is the legal test for finding aprima facie case of discrimination based on family status?
(a) Does family status include childcare obligations?
 There is no basis for the assertion that requiring accommodation for childcare obligations overshoots the purpose of including family status as a prohibited ground of discrimination. Indeed, without reasonable accommodation for parents’ childcare obligations, many parents will be impeded from fully participating in the work force so as to make for themselves the lives they are able and wish to have. The broad and liberal interpretation of human rights legislation requires an approach that favours a broad participation and inclusion in employment opportunities for those parents who wish or need to pursue such opportunities.
Having concluded that family status includes childcare obligations, the FCA found that the “precise types of childcare activities” contemplated by the prohibited ground of family status must be carefully considered and the types of childcare needs contemplated under the protection must be ones that have an “immutable or constructively immutable characteristic” saying that childcare obligations are those that a parent cannot neglect without engaging his or her legal liability. The example given by the FCA was that a parent cannot leave a young child without supervision in order to pursue his or her work as this would constitute a form of neglect or even engage the Criminal Code. The FCA said another way of saying it would be:
…parental obligations whose fulfillment is protected by the Canadian Human Rights Act are those whose non-fulfillment engages the parent’s legal responsibility to the child, such as childcare obligations as opposed to personal choices not “personal family choices, such as participation of children in dance classes, sports events like hockey tournaments, and similar voluntary activities.
(b) What is the prima facie test?
The FCA said a prima facie case must be determined in a flexible and contextual way by evidence and that in order to make out a prima faciecase, an individual must show:
- That a child is “actually” under the individual’s care and supervision;
- That the childcare obligation engages the individual’s legal responsibility for that child, as opposed to a personal choice (that the child has not reached an age where he or she can reasonably be expected to care for himself or herself);
- That the individual has made “reasonable efforts” to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is “reasonably accessible”; and
- That the impugned workplace rule interferes in a manner that is more than “trivial or insubstantial” with the fulfillment of the childcare obligation.
The FCA said that this test must be sufficiently flexible to advance the broad purpose of the Canadian Human Rights Act:
…the principle that individuals should have the opportunity equal with other individuals to make for themselves the lives they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on family status.
What this means for employers?
Whether prima facie discrimination is established will always be based on a case-by-case analysis when it reaches the stage of a human rights inquiry. Employers must consider the employee’s childcare obligations, however the employee must also make “reasonable efforts” with “reasonable alternative solutions”. The latter will require investigation by the employee of alternative childcare providers that provide services that can meet the employee’s requirements. In some instances, such as the rotational shifts in the Johnstone decision and the fact that Ms. Johnstone’s husband also worked a rotational shift, it may be impossible to find a “reasonable alternative solution” and the need for accommodation may be more obvious. Where an employer has shown that a “reasonable alternative solution” is not available, employers should consider whether there is an alternative position available or any other potential accommodations to accommodate the employee’s childcare responsibilities.