On May 2, 2014, the Federal Court of Appeal released the much anticipated decision ofJohnstone v. Canada Border Services Agency on family status accommodation.
For an employee’s childcare need to require accommodation by an employer, this is the four-part test set out by the Court:
in order to make out a prima facie case where workplace discrimination on the prohibited ground of family status resulting from childcare obligations is alleged, the individual advancing the claim must 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’s case satisfies all four elements of that test, a “prima facie case” of discrimination is made out and the burden is imposed on a employer to accommodate, or to show that accommodation would constitute an undue hardship.
In 2010, Ms. Johnstone appeared in front of the Canadian Human Rights Tribunal (CHRT) and argued that her employer, Canada Border Services (CBS), had discriminated against her on the ground of family status by failing to accommodate her childcare obligations. Ms. Johnstone was a Canada Border Services Officer and had rotating, irregular and unpredictable shifts which were assigned on 15 days’ notice. The employer could change the schedule on 5 days’ notice. Ms. Johnstone’s husband also worked for the CBS as a supervisor, and was subject to the same rotating shift policies. When Ms. Johnstone returned from maternity leave, she asked to have regular static shifts on 3 adjacent days per week with enough hours to maintain her full time status. This would allow her to reasonably arrange for child care, but not affect her pension, benefits, or employment opportunities. CBS had an unwritten policy whereby this request was refused.
The CHRT found that 1) Ms. Johnstone was adversely differentiated against on the ground of family status, 2) CBS had established and pursued policies and practices that deprived Ms. Johnstone of employment opportunities, and 3) CBS had failed to establish a bona fide occupational requirement, or otherwise justify the policies in question.
The matter was appealed to the Federal Court for judicial review in 2013. The Federal Court decision garnered much attention in the newly evolving area of family status when the Federal Court upheld the CHRT decision. The Federal Court confirmed that Ms. Johnstone had been discriminated against on the basis of family status, which included child care obligations. The Court confirmed that CBS’s conduct, policies and practices adversely impacted Ms. Johnstone based on a personal characteristic, in this case family status, which is recognized as a prohibited ground of discrimination. The Federal Court also confirmed that the threshold to show prima facie discrimination for family status was no higher than for all other grounds of discrimination. To find otherwise would create a hierarchy of discriminatory grounds.
Federal Court of Appeal Decision
The matter was further appealed to the Federal Court of Appeal and on May 2, 2014 the eagerly awaited decision was released, confirming the findings and principles outlined in the lower courts.
In the decision, the Federal Court of Appeal provided further insight into what will trigger the protection of family status under human rights law. Justice Mainville, delivering the decision for the Court, elaborated on several findings from the lower decisions:
Justice Mainville spent some time outlining the scope of protection under the ground of family status. He said that, like other grounds of discrimination, family status should only protect an individual’s “immutable and constructively immutable characteristics”. To this end, the parental obligations that are protected by the Canadian Human Rights Act are those whose non-fulfilment engages the parent’s legal responsibility to the child under, for example, child welfare or criminal legislation. Hence, a parent cannot leave a small child unattended in order to attend work, as this would be considered neglect. On the other hand, voluntary childcare obligations amounting to personal family choices, such as participation in dance classes or sports, will not fall within the scope of family status.
Justice Mainville also provided that “protection from discrimination for childcare obligations flows from family status in the same manner that protection against discrimination on the basis of pregnancy flows from the sex of the individual. In both cases, the individual would not require accommodation were it not for the underlying ground (family status or sex) on which they were adversely affected.”
Prima Facie Threshold
CBS once again argued that the threshold to show prima facie discrimination for family status should require a “serious interference” with a “substantial” parental duty or obligation. The Federal Court of Appeal, like the Federal Court, disagreed, finding that the test for discrimination based on family status should be substantially the same as for other ground of discrimination: “[t]here should be no hierarchy of human rights.” However, the Court said that the test must also be necessarily flexible and contextual since the facts which will support discrimination based on one prohibited ground may differ from facts which will support another. Therefore, an analysis must be conducted on a case by case basis.
That analysis involves a four-part test for an employee to show that child care needs constitute “family status” requiring accommodation. If that test is met, the employer bears the burden of accommodating, unless the imposition on the employer reaches the high threshold constituting “an undue hardship”.
The Federal Court of Appeal varied the Federal Court’s judgement with respect to remedies, but upheld the decision otherwise and dismissed the appeal, awarding costs to Ms. Johnstone.
Take Home Messages for Employers
This appellate level decision is the new leading authority on the protected ground of family status with respect to child care obligations Family status is not a second rate human right, but the “worst case scenario” interpretation – that an employer might have to change work schedules to accommodate every soccer game or school play, etc, is not what the decision demands.
The Court provides a test which, to some degree, clarifies the nature of the family obligations and the circumstances where an employer must accommodate: (1) the employee has a child under care (2) the issue involves their legal duty to the child and not a personal choice (3) they have exhausted their own reasonable efforts to solve the issue and (4) the workplace standard substantially interferes with the person’s ability to satisfy the legal obligation to the child under care. If those facts exist, an employer must attempt to accommodate.
Left open for further discussion are other family status obligations, such as elder care – a major issue in our society. We can anticipate more decisions on that, but if employers attempt to apply the Johnstone principles to any accommodation request, they will have a greater likelihood of satisfying legal duties while assisting employees.
If you have any questions or require any assistance with respect to your policies regarding family status accommodation, please do not hesitate to contact your Gowlings lawyer or another member of our team.