On May 2, 2014, the Federal Court of Appeal (FCA) rendered two decisions relating to discrimination based on family status. In so doing, the court clarified the scope of the prohibited ground of family status contained in the Canadian Human Rights Act, as well as the legal test for finding a prima facie case of discrimination on the same ground.
Although both cases turned on specific facts involving parents that had sought accommodations from their employers based on childcare needs, the common element of the legal criteria to be determined in such cases was set out in the case of Attorney General of Canada v. Fiona-Ann Johnstone and Canadian Human Rights Commission (Johnstone).1
Family status includes childcare obligations
The two cases were appeals from judgments denying judicial review of decisions rendered by the Canadian Human Rights Tribunal that had allowed complaints of family status discrimination. Although the FCA denied both cases on the issue of liability, in one of the two (Johnstone), the court allowed the appeal on the question of remedy. The FCA confirmed that family status includes certain childcare obligations of working parents, noting that, “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.”
However, the court noted that the types of childcare needs contemplated by family status must be limited to those that have an “immutable or constructively immutable characteristic.” In other words, family status does not include protection for personal family choices, such as participation in extra-curricular activities and other voluntary activities. Rather, the court specified that the types of childcare obligations within the scope of the Act are those that a parent cannot neglect without engaging his or her legal liability.
Based on this finding, the court moved to determine the proper legal test for finding a prima facie case of family status discrimination, or what a complainant must show to prove that he or she has a right to accommodation up to the point of undue hardship.
The new test for finding a prima facie case of discrimination based on family status
In rejecting the recent evolution of case law arising from human rights tribunals, the FCA developed a test that took into consideration recent appellate case law (such as the Campbell River decision) as well as a line of labour arbitration case law to develop a clear four-part test. To meet this test, an individual advancing a claim must show:
- that a child is under his or her care and supervision;
- that the childcare obligation at issue engages the individual’s legal responsibility for that child, as opposed to a personal choice;
- that he or she has made reasonable efforts to meet that childcare obligation 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 court made it clear that the above test requires a complainant to show that reasonable efforts have been expended to meet childcare obligations within means available to the parent(s) and that neither the employee seeking an accommodation nor his or her spouse can meet the parents’ enforceable childcare obligations while continuing to work. Moreover, a claimant must show that an available childcare service or alternative arrangement that would meet the childcare needs is not reasonably accessible. Finally, the FCA made it clear that for a parent/employee to trigger the employer’s legal obligations, the workplace rule or working condition must interfere in a manner that is “more than trivial or insubstantial” with the fulfillment of the childcare obligation.
Implications for employers
Although the FCA’s decisions were rendered pursuant to federal human rights law, courts and labour arbitrators across Canada are likely to pay close attention to the decisions’ messages. While employers received a clear message that they may be required to assist their employees in reconciling work and childcare obligations in exceptional circumstances, the primary obligation to balance work and family rests with the parents, who must exhaust all reasonable alternatives prior to seeking a modification of their working conditions.