The Federal Court of Canada (the Court) recently released two decisions upholding the Canadian Human Rights Tribunal's (Tribunal) findings in Canada (Attorney General) v. Johnstone and Canadian National Railway v. Seeley, which held that the Canadian Border Services Agency (the “CBSA”) and Canadian National Railway (CN) discriminated against female employees by failing to accommodate childcare obligations. In doing so, the Court declined to follow the more stringent test for establishing family status-related discrimination complaints followed by the British Columbia Court of Appeal.
Fiona Johnstone had been a full-time CBSA employee for several years when she gave birth to her first child in 2003. Following her maternity leave, she requested a fixed daytime shift schedule to accommodate the childcare services available to her. Ms. Johnstone also wanted to work full-time to be eligible for training and advancement opportunities, pension, and other benefits available only to full-time employees. The CBSA, however, refused her request on the basis of its unwritten policy that only part-time employees were permitted to work fixed shifts. As such, Ms. Johnstone switched to part-time employment in order to fulfill her childcare obligations. Following the birth of her second child in 2005, Ms. Johnstone requested a fixed full-time schedule for a second time. Following the CBSA's refusal of her second request, Ms. Johnstone brought a human rights complaint before the Tribunal alleging discrimination on the basis of family status.
Unlike the Johnstone case, the alleged discrimination in the Seeley case arose as a result of a forced transfer. In particular, Ms. Seeley, who lived in Alberta, was required by her collective agreement to temporarily relocate to Vancouver to cover a staffing shortage. In light of her childcare obligations, Ms. Seeley was unable to immediately transfer. Moreover, Ms. Seeley had no immediate family nearby and her husband was also unable to care for their two children because his work schedule was often unpredictable. As such, Ms. Seeley requested a time extension to transfer to Vancouver and later requested to be excused from the transfer altogether on compassionate grounds. While CN granted a four (4) month extension, it ultimately refused to exempt Ms. Seeley from the transfer. CN later terminated Ms. Seeley when she failed to report to Vancouver within the designated timeline. Similar to Ms. Johnstone, Ms. Seeley subsequently filed a complaint with the Tribunal.
Decisions of the Tribunal
In separate decisions, the Tribunal agreed with Ms. Johnstone and Ms. Seeley and found they had been discriminated against. In particular, the Tribunal held that the enumerated ground of “family status” under the Canada Human Rights Act (the Act) encompasses not only a familial relationship with another individual, but also the needs and obligations that naturally flow from such a relationship (such as the childcare obligations of a parent). It further held that the test for family status discrimination is the same as that applied to any other allegation of discrimination. That is, to ground a claim of discrimination an employer must make an adverse distinction against an employee based on a ground prohibited by the Act.
With respect to Ms. Johnstone’s complaint, the Tribunal found that the CBSA could have accommodated her scheduling request because (i) only small numbers of CBSA employees requested fixed schedules when returning from maternity leave; (ii) the CBSA accommodated scheduling requests of other employees for medical and religious reasons; and last, (iii) there were no health and safety concerns about Ms. Johnstone’s ability to perform 13-hour shifts. In fact, it was held that the CBSA did not examine any accommodation measures which was part of the requested accommodation. Thus, it failed to establish it would have experienced undue hardship by accommodating Ms. Johnston’s request.
CN, on the other hand, primarily argued that its offered time extension fulfilled its duty to accommodate. The Tribunal held, however, that this extension was insufficient and that CN had not meaningfully considered Ms. Seeley’s accommodation request. In particular, correspondence sent by Ms. Seeley to her supervisor outlining her concerns went unanswered by CN. In fact, it was held that CN did not even apply its own accommodation policies.
Ms. Johnstone was awarded damages in respect of lost wages and benefits, $15,000 for pain and suffering, and $20,000 for special compensation. The CBSA was also ordered to cease its discriminatory practices against employees seeking accommodation based on childcare responsibilities and was further required to consult with Ms. Johnstone and the Human Rights Commission to develop a plan to prevent further incidents of such discrimination. Ms. Seeley was similarly awarded lost wages and benefits, $15,000 for pain and suffering, $20,000 for special compensation, and CN was ordered to ensure its discriminatory practices ceased and that appropriate accommodation measures were instituted. Ms. Seeley was also reinstated without a loss of seniority.
The CBSA and CN subsequently applied to the Court for a review of the Tribunal’s decisions.
The Court’s Decisions
The Scope of “Family Status” and the Legal Test for Discrimination
In its decisions, the Court agreed with the Tribunal’s holdings that “family status” includes obligations flowing from a familial relationship (such as childcare responsibilities) as opposed to mere status as a parent. The Court also held that the Tribunal had applied the correct test for determining whether there was discrimination on the basis of family status. In doing so, the Court expressly declined to follow the arguably more stringent test for family status discrimination established by the British Columbia Court of Appeal. This more stringent test holds that there is no discrimination unless there has been “a serious interference with a substantial parental or other family duty.” The Court made it clear that the threshold for discrimination under the Act was no different for family status than it is for any other prohibited ground.
Managing Work-Life Obligations is a Two-Way Street
With respect to its decision regarding Ms. Johnstone, the Court specifically echoed the Tribunal's acknowledgement that “not every tension that arises in the context of work-life balance can or should be addressed by human rights jurisprudence,” and the Court held that a family status complainant must demonstrate that their childcare obligations are “of substance” and that they have tried to reconcile family obligations with work obligations. It is erroneous, however, to assume that family childcare obligations arise out of an individual’s choices and not legitimate need.
Following its endorsements of the Tribunal's decisions as to liability, the Court turned its attention to the Tribunal's remedies. With respect to Ms. Johnstone, the Court upheld the awards for pain and suffering and special compensation, but found that the Tribunal had erred in its calculation of lost wages because it ordered payment of wages for a period of time she was on unpaid leave. It was also held that while the Tribunal had the power to order the CBSA to develop policies to redress discriminatory practices, it exceeded its jurisdiction in granting Ms. Johnstone a role in developing these remedial policies. The Tribunal’s remedies with respect to Ms. Seeley were untouched by the Court.
While the Court was of the view that the test for family-status discrimination adopted by British Columbia’s Court of Appeal applies an unreasonably high threshold, the real the difference between the two tests (namely, a workplace rule that results in “serious interference with a substantial parental obligation” versus a rule that merely “interferes with a substantial parental obligation”) will only become apparent as more family status-related cases are litigated.
With respect to provincially regulated employers in Ontario, we recently blogged about the decision of Devaney v. ZRV Holdings, in which the Ontario Human Rights Tribunal held that an employee was discriminated against when he was terminated in light of his poor attendance record arising from eldercare obligations. The Tribunal established the following two part test to determine whether a prima facie case of family status discrimination exists under Ontario’s human rights legislation: (i) the employee must demonstrate that he or she was adversely impacted by a requirement imposed by his or her status as a caregiver; and (ii) the adverse impact must relate to an employee’s needs as opposed to the employee’s preference or choice. This test appears closer to the reasoning in Johnstone and Seeley than it does with the “serious interference” threshold followed by the British Columbia Court of Appeal. However, as the Devaney decision was released prior to the Court’s holdings in Johnstone and Seeley, the true effect of these decisions on provincially regulated employers in Ontario going forward is unclear.
In any event, the Court’s decisions send a clear signal to federally-regulated employers that childcare-related needs of employees may require accommodation, particularly with respect to employees who have made real attempts to reconcile their family obligations with their work obligations.