On May 2, 2014, the Federal Court of Appeal released its much anticipated decision in Canada (Attorney General) v. Johnstone (“Johnstone”). In the decision, the court clarified both the scope of the “family status” protection found under the Canadian Human Rights Act and the legal test that must be met before an employer’s duty to accommodate can be triggered.

Background of Johnstone case

Johnstone involved a mother seeking accommodation for childcare obligations from her employer, Canadian Border Services Agency (“CBSA”). Ms. Fiona Johnstone, who along with her husband worked rotating, irregular, and unpredictable shifts, sought a fixed three-day schedule so that she could more easily plan for the childcare needs of her two young children. Similar accommodation had been provided in the past by CBSA to employees who had made medical and religion based accommodation requests.

The CBSA agreed to give Ms. Johnstone a fixed schedule on a part time basis only, thereby negatively impacting her access to benefits, pension, and promotion opportunities. Ms. Johnstone filed a human rights complaint based on family status. In defence, CBSA claimed that it had no legal obligation to accommodate Ms. Johnstone. The CBSA did not make an undue hardship argument or a bona fide occupational requirement claim.

The Federal Court of Appeal Decision

The Court agreed that family status includes childcare obligations, but clarified the scope of the protection. The Court noted that the ground only protects an individual’s “immutable or constructively immutable” characteristics, meaning that the protection is only triggered when a parent’s legal responsibility is engaged. A parent’s individual choices are not protected.

The Court found that while there is no hierarchy in grounds of discrimination, the threshold test to establish prima facie discrimination is flexible and contextual. The Court created a four-part test that a federally regulated employee must meet to make out a prima facie case for family status discrimination and to trigger an employer’s duty to accommodate:

  1. Parental obligation. The person making the claim for protection must be a parent or responsible for a child’s care and supervision.
  2. Legal obligation. The accommodation sought must be for a legal responsibility to the child; not just a personal choice.
  3. Reasonable efforts. A responsible effort must have been made to secure alternative means to meet the childcare obligation(s).
  4. Real interference. The interference created by the workplace rule must be more than trivial or insubstantial.

Based on these four factors the Court found that discrimination occurred in Ms. Johnstone’s case.

Impact of Johnstone  Decision on Employers

The decision in Johnstone limits the scope of protection provided by family status by clarifying that employees may only seek accommodation for childcare obligations that engage their legal obligation to a child. The decision will be binding on federally regulated employers covered by the Canadian Human Rights Act. It will also be highly influential at the provincial level.

While we wait for the Supreme Court of Canada to weigh in, employers should continue to take employee requests for family status accommodation seriously and attempt to accommodate those requests in good faith. Employers should have a general policy for accommodation, but should also pay special attention to the facts of each accommodation request and attempt to accommodate the specific needs of each employee. Employers should keep track of all steps taken to accommodate the employee. However, accommodation is still a “two-way street”, and so employees must also make reasonable efforts to seek alternative means for satisfying their childcare obligations.

Kristine Gorman