The Federal Court of Appeal’s much-anticipated decision in Johnstone v.Canada Border Services Agency, 2014 FCA 110, concerns a growing area of interest and controversy in employment law – family status and accommodation.
In 2010, Fiona Anne Johnstone, an employee of the Canadian Border Services Agency (“CBSA”) brought an application before the Canadian Human Rights Tribunal alleging that the CBSA had discriminated within the meaning of the Canadian Human Rights Act by refusing to allow her to accommodate her childcare needs. Ms. Johnstone required a flexible work arrangement to discharge her duties.
The Tribunal found in favour of Ms. Johnstone and held that the CBSA had established policies and procedures which adversely affected her ability to meet childcare demands and that those policies could not be justified. CBSA appealed the Tribunal’s decision to the Federal Court in 2013. The Federal Court upheld the Tribunal’s decision, finding that Ms. Johnstone had been discriminated against on the basis of family status because it included certain types of childcare obligations.
The matter was then further appealed to the Federal Court of Appeal which confirmed the findings of the Federal Court and Tribunal. It said:
“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. The broad and liberal interpretation of human rights legislation requires an approach that favours a broad participation and inclusion in employment opportunities for those parents who wish or need to pursue such opportunities”.
In applying a broad interpretation, the Court distinguished between activities that result from “personal family choices, such as participation of children in dance classes, sports events like hockey tournaments, and similar voluntary activities” from those that arise from parental obligations whose non fulfillment engages the parent’s legal responsibility to the child. The Court ruled that only the latter kind of childcare obligation is included under the ground of family status under the Code. Family activities, such as family trips, participation in extracurricular sports events etc., result from parental choices rather than parental legal obligations. These activities would not normally trigger a claim to discrimination resulting in some obligation to accommodate by an employer.
The Court then applied a four-part test to determine whether the childcare needs in question required accommodation:
- The child is under the care and supervision of the parent;
- The childcare obligation involves some legal liability of the parent and not a personal choice;
- The parent has made reasonable efforts to obtain alternative solutions and no alternative solution is reasonably accessible; and
- The workplace rule “interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation”.
Considerations for employers when dealing with requests for accommodation based on family status
- In responding to an accommodation request based on an employee’s family status, it is important that the employer find out more about the request so that it can distinguish between a parental choice and a parental legal obligation.
- Employers may be scrutinized if they are unreasonable in their refusal to meet a parent’s request for flexibility, particularly in our view, if the request relates to childcare, and are encouraged to take a long view and spend the time and resources to review such requests.
- Employers are encouraged to consider a wide range of options before refusing or taking the position that the employee’s request cannot be accommodated if the request is related to a parental legal obligation. Comprehensive notes should be taken of what was discussed and what steps, if any, were taken to address the request for accommodation.
Clearly the legal and social landscape is changing in favour of giving parents greater flexibility and freedom to perform their jobs and to have children. However, the Federal Court of Appeal also makes it clear that not all childcare needs are protected by human rights. A parent’s decision and need for accommodation must arise from an obligation to take care of their children and not simply from a desire to take children to optional activities such as hockey practice or dance lessons.