The Federal Court of Appeal has upheld a decision that refusing an employee’s request to telework full-time so that she could continue to breastfeed her child was not discriminatory
The right to breastfeed in public has made headlines of late, but the Federal Court of Appeal’s decision in Flatt v. Canada (Attorney General) makes it clear that choosing to breastfeed in most instances is just that – a choice, and not one that will necessarily be protected by human rights legislation in the context of work obligations.
Laura Flatt is a unionized employee of the Treasury Board of Canada. When her third child was born she took a one-year maternity leave. Following this leave, she requested permission to "telework" (work from home or an office closer to her home) full-time so that she could continue to breastfeed her child for one year. The employer had a telework policy that permitted some employees to telework for part of the workweek, which Flatt had utilized following the births of her first two children.
The employer refused Flatt’s request to full-time telework. The parties attempted to arrange a work schedule that met both their needs, but ultimately were unable to agree. Flatt filed a grievance claiming that the employer had discriminated against her on the basis of sex and family status when it refused to permit her to telework full-time so that she could breastfeed her child.
The Public Service Labour Relations and Employment Board dismissed the grievance, finding that breastfeeding was not "immutable" but was a personal choice. Flatt sought judicial review of the board’s decision. Flatt argued that breastfeeding is part of a mother’s legal obligation to nourish her child and thus the employer’s refusal to permit her to telework from home was discriminatory.
The Federal Court of Appeal concluded that to make a case of discrimination on the basis of sex or family status related to breastfeeding, proper evidence would be required. The purpose of such evidence was to establish that returning to work was incompatible with breastfeeding.
In this case the court noted that Flatt had provided no evidence that her child had a particular need or medical condition that required breastfeeding. She provided no evidence that she could not express her milk nor explain why the child could not receive expressed breast milk from a bottle.
The court concluded that Flatt’s evidence did meet the second element of the family status test – that breastfeeding during work hours is a legal obligation – and concluded that breastfeeding in this case was a personal choice. The court held that Flatt also failed to show that she had made a reasonable effort to meet this legal obligation. When negotiations with her employer failed, she simply abandoned the process and filed a grievance, reverting to her original request for full-time telework.
The court made note that its decision should not be understood as trivializing breastfeeding, which is a commendable choice. Rather, the court emphasized that "in the case of breastfeeding, the onus is on the working-outside-the-home mother to make a prima facie case of discrimination. Unfortunately in this case, the applicant failed." The court dismissed the review with costs.
Lessons for employers
- When faced with an accommodation request for breastfeeding, the employee will need to provide evidence that breastfeeding is required, such as medical evidence that the child specifically requires breast milk as opposed to formula or other types of milk.
- The employee will also need to provide evidence of the alternate arrangements she has considered to meet the requirement to breastfeed. Children can be bottle-fed by others from milk the mother has expressed.
- This case illustrates that the most reasonable position tends to prevail. Flatt took an unreasonable position: that she should be permitted to telework full-time. While in this case the issue of accommodation did not arise because Flatt could not prove prima facie discrimination, her position that working from the office at all was incompatible with breastfeeding was unreasonable and not supported by the evidence.
For more information see:
- Flatt v. Canada (Attorney General), 2015 CarswellNat 5632 (F.C.A.).
Julie Menten practices with Roper Greyell in Vancouver, in all areas of employment, labour,human rights and privacy law, supported by her extensive experience in the mental health field. She can be reached at (604) 806-3840 or [email protected].
