The Federal Court of Appeal takes a “broad” approach to family status discrimination – with limitations – in two recent decisions
What is an employer’s duty to accommodate an employee’s child care obligations? This topic continues to be a hot one in the workplace, as employers try to balance the need to retain talent and ensure a productive workplace.
Part of the problem is that “family status” is not defined in either the British Columbia Human Rights Code or the Canadian Human Rights Act. As a result, different approaches to what family obligations, if any, are protected by human rights legislation have emerged in various Canadian jurisdictions. As we have discussed in previous posts here and here, the British Columbia Court of Appeal has taken a more narrow approach to protecting family obligations under human rights legislation (the so-called “Campbell River” approach), compared to other tribunals and the Federal Court.
However, the Federal Court of Appeal’s recent decisions in Johnstone and Canadian Human Rights Commission v. Attorney General of Canada, 2014 FCA 110 and Canadian National Railway Company v. Seeley and Canadian Human Rights Commission, 2014 FCA 111 seem to suggest that Canadian jurisdictions may not be so far apart after all.
Both the Johnstone and Seeley cases involved mothers of young children who requested relief from a workplace schedule or assignment which would have left their children without adequate child care. Ms. Johnstone and her husband both worked as full-time employees for CBSA and were required to work rotating shift schedules with no predictable pattern. After having children, Ms. Johnstone requested a fixed work schedule to accommodate her child care obligations. Although the CBSA had accommodated other full-time employees with medical issues with fixed work schedules, it declined to do so for Ms. Johnstone and, instead, offered her part-time work, which would have negatively affected her benefits, pension and promotion opportunities.
Ms. Seeley and her husband were also employed by the same employer, this time Canadian National Railway. Ms. Seeley requested an exemption when she was asked to report to Vancouver to cover a labour shortage, claiming that there would be no child care arrangements available during her absence in the small town where they lived. CN did not approve Ms. Seeley’s request and eventually terminated her employment because of her failure to report to work in Vancouver.
In both decisions, the Court expressed its preference for a broader approach to family status discrimination. But, it emphasized that human rights laws only protect employees’ child care needs, not preferences. The Court developed a four-part test to distinguish between what is a child care need protected by human rights law, and a child care preference, which is not. We set out the Court’s test in more detail below, but first, what does this decision mean for BC employers?
While the Campbell River approach remains the law for provincially regulated employers in BC, we recommend that both federally and provincially regulated employers take a flexible, informed approach to accommodating an employee’s family obligations. On a practical level, in addition to managing legal risks, accommodating an employee’s reasonable child care obligations may help employers recruit and retain talent. While each case will depend on the facts, we recommend the following general approach to managing employees’ work/life conflicts:
- Don’t jump to a conclusion or rush to a solution. Gather all the relevant information about the employee’s and your organization’s needs, and encourage the employee’s (and union’s) participation in finding a solution that works for both parties.
- Consider whether you are dealing with a family obligation or a family preference; similarly, assess the extent to which the workplace rule interferes with the family obligation, and if the rule can modified or changed without incurring significant cost or disruption.
- Consider all the options available and, if possible, offer a reasonable accommodation.
- Follow up with the employee and others to assess whether the employee’s needs have changed, the anticipated duration of the accommodation, and any modifications necessary to make it work.
- When in doubt, seek legal advice.
As described above, the Court established a four-part test which a federally regulated employee must meet to make a case of family status discrimination and trigger an employer’s duty to accommodate. The employee must show:
- A parental obligation: The employee is the parent of the child, or otherwise responsible for the child’s care and supervision.
- A legal obligation: The employee’s child care obligation engages his/her legal responsibilities to the child, rather than a personal family choice. This means that interference with a parent’s ability to attend a child’s sports game or parent/teacher meeting would not likely constitute discrimination, but requiring a parent to leave a young child alone without adult supervision would.
- Reasonable efforts: The employee must show that he/she has made reasonable efforts to meet child care and workplace obligations through reasonable alternative solutions – including childcare providers, family, and others –and that no solution was readily accessible. For example, Ms. Johnstone investigated numerous regulated and unregulated child care providers near her home and her work and inquired with family members, but no one could provide child care during Ms. Johnstone’s unpredictable work schedule. It is important to note, however, that an employer will have to fully communicate workplace requirements so that an employee can investigate alternative solutions. In Seeley, the Court found that CN did not provide enough information about the work assignment in Vancouver for her to assess whether her child care needs could be met, including the assignment’s estimated duration, location, her shifts, and housing arrangements.
- Real interference: The workplace rule in question interferes with the child care obligations in a manner that is more than trivial or insubstantial. While the Court did not elaborate on this fourth and final factor, we can assume, for example, that being five minutes late to pick up a child from daycare once a week would not trigger an employer’s duty to accommodate..