A recent decision of the Canadian Human Rights Tribunal, Johnstone v. Canada Border Services, looks at an employer's obligation to accommodate an employee's request for alternate working arrangements to allow the employee to meet his or her childcare obligations.
Ms. Fiona Ann Johnstone ("Johnstone") filed a complaint alleging that her employer, Canada Border Services ("CBS"), had breached sections 7(b), 10(a) and 10(b) of the Canadian Human Rights Act. Johnstone's complaint is summarized by the Tribunal as follows:
Ms. Johnstone alleges that the CBSA's policies forced her into part-time status upon her return to work after having each of two children, resulting in her being given fewer hours of work than she was willing and able to work, with an attendant loss of benefits that are available to full-time employees.
The facts giving rise to the complaint began in 2004 and, according to Johnstone, continued to the date of the hearing. At the time of filing her complaint, she was employed as a border services officer in Passenger Operations at Pearson Airport in Toronto. She worked a five-day on, three-day off rotating schedule. Passenger Operations at Pearson is a 24-hours-a-day, seven-days-a-week operation, involving irregular and unpredictable shift work. Full-time employees are rotated through six different starting times, from early morning to late at night. Overtime was often required and employees received little, if any, notice.
Johnstone's first child was born in January 2003 and her second in December 2004. For each child she took a one-year maternity leave. Due to her new child-rearing responsibilities, Johnstone sought accommodation from CBS. She wanted to work a static three-day schedule, 13 hours per day, to maintain her full-time status. Johnstone's evidence, which the Tribunal accepted, was that she was having great difficulty arranging childcare for more than three days per week. Johnstone's husband also worked for CBS on an equally difficult shift schedule. However, she had three family members able to care for the children on each of the three days she proposed to work.
On all occasions Johnstone's requests for accommodation were denied. CBS enforced an unwritten policy that employees requesting accommodation on the basis of child-rearing responsibilities could be accommodated with static shifts, but would not be given full-time hours. This was in contrast to employees who requested accommodation for medical or religious reasons, who were given static shifts and full-time hours. CBS took the position throughout the proceedings that it had no obligation to accommodate an employee who had chosen to have children, short of any medical reasons necessitating accommodation.
The Tribunal's Decision
The first step for the Tribunal was to determine whether Johnstone had established a prima facie case of discrimination. To do so, Johnstone "need only demonstrate that a policy has had some differential impact on her due to a personal characteristic which is recognized as a prohibited ground of discrimination." Therefore, this issue turned on whether Johnstone's need to care for her children was a "prohibited ground of discrimination." CBS submitted that this need did not come within the definition of "family status" in section 2 of the Act, because Johnstone had made the choice to have children.
The Tribunal found that "family status" is broad enough to encompass obligations arising as a result of becoming a parent. In fact, in direct contrast to CBS's submission, the Tribunal held that the Act affords protection against discrimination with respect to an individual's choice to have children. The Tribunal stated, "The freedom to choose to become a parent is so vital that it should not be constrained by fear of discriminatory consequences."
Therefore, Johnstone had established prima facie discrimination: CBS's policy of refusing full-time hours to employees requesting accommodation due to child-rearing responsibilities was prima facie discriminatory on the basis of family status. The onus was then on CBS to demonstrate that the discrimination was necessary to achieve a legitimate work-related objective and that it had reached the point of undue hardship in its efforts to accommodate Johnstone's request.
CBS argued that if it accommodated requests such as Johnstone's, the floodgates would open for all employees with children to request better shift schedules. However, CBS offered no evidence to support this view and the Tribunal rejected CBS's fear as being based on "impressionistic assumptions." Further, the Tribunal found no evidence that working 13-hour shifts was a health and safety risk, which CBS had suggested was another reason to refuse Johnstone's request.
Given CBS's failure to demonstrate undue hardship or a bona fide occupational requirement that necessitated the discriminatory conduct, the Tribunal found that Johnstone's complaint was substantiated on all grounds.
The Tribunal ordered CBS to cease its discriminatory practices against employees who seek accommodation based on family status for purposes of childcare responsibilities. CBS was given six months to establish written policies to address family status accommodation requests. Interestingly, and perhaps alarmingly, these polices must be satisfactory to Johnstone and the Canadian Human Rights Commission.
Regarding monetary remedies, Johnstone was awarded lost wages and benefits, including pension contributions, from January 2004 to the date of the decision. In addition, she received $15,000 by way of general damages for pain and suffering and $20,000 "special compensation" due to CBS's "wilful and reckless" conduct.
Lessons for Employers
- The Tribunal has made it clear that childcare obligations are protected by "family status" under the Act. Therefore, employers must be alert to requests for accommodation based on childcare responsibilities.
- Employers should consider having a written policy outlining how they will respond to such requests. Pursuant to this policy, employees requesting accommodation for childcare responsibilities should be required to exhaust all childcare and family avenues available to them, including childcare options that the employer may suggest, before the employer will engage in accommodation discussions. To this end, it may be useful for employers to prepare a list of childcare options, such as third-party providers, that can assist employees in their search for childcare arrangements.
- A written policy will help employers respond consistently to such requests, and will help employees understand their obligations in the accommodation process.
- Employers must be careful to assess all requests for accommodation individually, and should not apply strict across-the-board policies to all requests of a particular nature.
- Similarly, employers must ensure that requests for accommodation of a particular nature (e.g., a static work schedule) are not treated differently based on the reasons for such requests.