Discrimination and family status: The Federal Court of Appeal weighs in

A review of two cases in the past year that have defined the requirement for employers to accommodate family status
By Alanna Twohey
|employmentlawtoday.com|Last Updated: 08/25/2014

The Federal Court of Appeal has decided that discrimination on the basis of family status is established where a work schedule interferes with an employee’s childcare obligations, and the employee has been unsuccessful in reasonable efforts to make alternate arrangements.

The decision in Johnstone v. Canada (Border Services), released on May 2, 2014, partially allowed the Attorney General of Canada’s appeal of the Federal Court’s decision to dismiss its judicial review application, which challenged a decision of the Canadian Human Rights Tribunal. While the substantive decision of the lower court remained intact, the remedies flowing from the Tribunal’s decision were varied.

The tribunal had found that the Canada Border Services Agency (CBSA) had discriminated against its employee, Fiona Johnstone, on the ground of family status by refusing to accommodate her childcare needs through scheduling arrangements, in violation of the Canadian Human Rights Act.

Johnstone had taken a year-long maternity leave after the birth of each of her two children. Prior to returning to work, Johnstone had requested modified hours permitting her to work only on days when she could obtain childcare. Ordinarily, she worked a 56-day variable schedule that contained six different start times on different days of the week, with no predictable pattern. Johnstone’s husband also worked for CBSA on the same type of variable schedule that was not generally co-ordinated with his wife, although there was some overlap.

CBSA refused to provide the requested accommodations, not on the basis that it would constitute undue hardship, but on the basis that it had no legal obligation to do so.

Johnstone filed a complaint with the Canadian Human Rights Commission, which, on the order of the Federal Court of Appeal, forwarded the complaint to the tribunal.

The tribunal held that neither parent could provide child care on a reliable basis. It decided that the protected ground of “family status” includes family and parental obligations such as childcare. The tribunal rejected a test for prima facie discrimination that required a “serious interference” with family and parental obligations; rather, it held that individuals should not have to tolerate any discrimination. It held that CBSA had a legal obligation to accommodate Johnstone, which it did not fulfill, nor did it provide any reason for its failure to do so. The tribunal ordered CBSA to cease its discriminatory practice against employees who seek accommodation related to childcare responsibilities, consult with the commission to develop a plan to prevent further incidents of family status discrimination in the future, and establish written policies, satisfactory to Johnstone and the commission, implementing a mechanism whereby family status accommodation requests would be addressed within six months, and which would include a process for individualized assessments of such requests.

Further, CBSA was ordered to compensate Johnstone for lost wages and benefits from when she first commenced part-time employment until the date of its decision, and to pay her $15,000 for pain and suffering and $20,000 for special compensation.

The Attorney General sought judicial review to the Federal Court, which dismissed the application but referred the matter back to the tribunal to reconsider the quantum of lost wages and to remove CBSA’s obligation to consult with Johnstone in developing a workplace policy.

Broad definition of family status

Regarding the definition of “family status,” the court found that, while no decisions were binding on the court, judges and adjudicators have defined family status to include parental obligations such as childcare. The court also reiterated that human rights legislation must be interpreted in a broad, liberal, purposive, flexible and adaptive manner if it is to be fully effective in preventing parents from being marginalized in the workplace by their decision to have children. The court then considered the French language equivalent of “family status” to be indicative of Parliament’s intention of a broad interpretation, which includes childcare obligations.

Finally, the court held that the act is intended to address the types of childcare needs that are not reflective of personal choices but rather are of an immutable or constructively immutable characteristic, “such as those that form an integral component of the legal relationship between a parent and a child,” which a parent cannot legally neglect under the Criminal Code and the Quebec Civil Code.

Regarding the legal test for finding a prima facie case of discrimination on the protected ground of family status, the Federal Court of Appeal stated that a “serious interference” with “substantial” parental obligations is not required. Instead, the court stated that in order to make out a prima facie case of discrimination in employment on the protected ground of family status resulting from childcare obligations, the applicant must demonstrate the following:

• A child is under his care and supervision, either as a parent or as a de facto caregiver
• The childcare obligation at issue engages the individual’s legal responsibility for that child, as opposed to a personal choice
• He has made reasonable efforts to meet those childcare obligations but no alternative solution is reasonably accessible (this includes looking to his/her spouse and childcare service providers)
• The impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation. This requires a fact-specific regard for the context in which the childcare obligations conflict with the work schedule.

The court declined to state categorically what specific types of evidence would be required to meet all four elements of the test, providing instead for a case-by-case determination.

In applying the test to the instant case, the court found the applicant to have met all of the four elements, and the tribunal’s decision was therefore deemed to be reasonable.

Turning to the Attorney General’s challenges to the remedies awarded by the tribunal, the court agreed Johnstone was not entitled to compensation for wages lost during a period in which she was on unpaid leave.

The court stated that the act permitted the tribunal to order CBSA to develop family status policies in consultation with the commission, but did not necessarily require that the policies be deemed satisfactory by the commission. Accordingly, CBSA was ordered to consult with the commission, and the issue whether the commission could be granted an implicit power of approval was left to be decided at a later date.

Finally, the court declined to vary the award of special damages, as it agreed that CBSA had engaged in “wilful and reckless conduct” by failing to follow a previous binding tribunal decision dealing with similar issues.

In addition to the decision in Johnstone, the Federal Court of Appeal also released its decision in Canadian National Railway Co. v. Seeley, regarding CN’s judicial review of the Tribunal’s finding that it had discriminated against Denise Seeley.

Seeley and her husband, also a CN employee, had one child in 1999 and another in 2003. In 2005, Seeley was transferred from her home in Brule, Alta., to report to work at a terminal in Vancouver. Noting that her husband would be unable to care for the children given his work schedule, and that she would be unable to take the children to Vancouver, she sought accommodation from CN in the form of permission to refuse the transfer. CN refused and, instead, it ultimately informed Seeley that her seniority rights had been forfeited and her employment terminated.

Seeley filed a complaint with the tribunal, which found that the protected ground of family status included the childcare obligations of a parent. Further, the tribunal opted to follow the test for a prima facie case as applied in Johnstone. The tribunal found that, in demonstrating that she could find no alternate childcare arrangements, Seeley had met the test.

With regards to CN’s conduct, the tribunal found that it had not demonstrated an inability to accommodate Seeley to the point of undue hardship and had not fulfilled the procedural component of the duty to accommodate. Thus, the tribunal ordered CN to ensure the discriminatory practice does not continue, reinstate Seeley and her seniority with compensation, and pay her $15,000 for pain and suffering and $20,000 for special compensation.

CN was unsuccessful in its appeal to the Federal Court, which agreed with the tribunal’s decision in its entirety. At the Federal Court of Appeal, the court adopted the test it had established in Johnstone and, in applying that test, honed in on the last two elements: whether Seeley made reasonable efforts to find alternative solutions, and whether her employment obligations interfered with her parental obligations in more than a trivial manner.

The Federal Court of Appeal found CN did not respond to Seeley’s inquiries for details about the transfer, such as its duration, location, and associated shifts and housing, and with the limited information she was provided, she would have had “significant difficulty” in making alternative reasonable childcare arrangements. On the second question, the court stated that it was obvious that requiring Seeley to leave her children behind would interfere with her legally-required parental obligations in a manner that is more than trivial or insubstantial.

Failure to show undue hardship fatal to employer’s case

The court went on to establish that CN had not demonstrated that accommodating Seeley would result in undue hardship. In light of the fact that CN had not addressed Seeley’s concerns in any meaningful way, did not offer her the various forms of accommodation that it had provided to other employees to allow them to remain at their home terminal, and did not demonstrate that it considered the applicability of the seniority provisions in the collective agreement to the facts in any meaningful way, CN had discriminated against Seeley.

The court refused to quash the $20,000 award for special compensation on the basis that CN’s failure to provide Seeley with all the information she requested regarding the transfer constituted reckless conduct.

The decisions in Johnstone and Seeley clarify the law with respect to family status discrimination and provide employers with the clear test for establishing a prima facie case of discrimination where an employee requests accommodation to address his childcare obligations. They also emphasize that there is an obligation on the employee to take reasonable steps to secure childcare where possible, before a prima facie case of discrimination will be found.

Alanna Twohey is an associate at Bird Richard, a labour and employment law firm in Ottawa. Alanna can be reached at (613) 238-3772 or atwohey@birdrichard.com.

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