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Feb 5, 2013

Child care part of family status accommodation: Federal Court

Court upholds tribunal’s finding that duty to accommodate family status applies to ‘lifestyle choices’ such as having children and finding care for them
    
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The Federal Court has upheld a Canadian Human Rights Tribunal decision that employers must make an effort to accommodate an employee’s child-care responsibilities.

Fiona Johnstone, 42, was a border services officer for the Canada Border Services Agency (CBSA) passenger operations at Pearson International Airport in Toronto. She was married to another border services officer and, as was the case for most officers, they worked a rotation of differing shifts.

CBSA had a pattern of rotating shifts in which employees worked through six different start times and different days of the week over a 56 day period. Officers received 15 days’ notice of each new shift schedule, though CBSA had the right under the collective agreement to change the schedule with five days’ notice. Border officers were also expected to work a certain amount of overtime.

Johnstone became pregnant and, before her scheduled maternity leave in January 2003, she asked CBSA for full-time static shifts when she came back to accommodate her child-care needs. She wanted to work three 13-hour days per week so she could remain fulltime.

She indicated she could arrange child care with her family for those three days. Otherwise, child care was difficult to secure with the rotating shift work as most daycare facilities operated from 7 a.m. to 6 p.m. Monday through Friday. A live-in nanny was also not an option because of the expense, so Johnstone reiterated her request when she returned to work in January 2004.

CBSA had an unwritten policy that didn’t allow static shifts for child-care responsibilities and any accommodation for child care had to be for part-time hours. The agency felt child-care obligations were based on choices employees make for which the employer had no responsibility. The agency was also concerned that giving Johnstone this accommodation would open up a flood of similar requests. CBSA also said it didn’t want any employees working more than 10-hour days, so the best it could do was three 10-hour days plus another four hours on a fourth day. Starting times would vary, but they would be on the same days each week.

Johnstone had another child in December 2004 and when she returned from her maternity leave in December 2005, she once again requested full-time hours over three days. Once again, CBSA denied her request.

Johnstone filed a human rights complaint, claiming CBSA discriminated against her because of her family status.

Though CBSA felt child care fell outside of its obligation to accommodate family status because it was based on a lifestyle choice, the Canadian Human Rights Tribunal disagreed, finding in 2010 the agency discriminated against Johnstone by failing to investigate accommodation options.

On CBSA’s appeal, the Federal Court upheld the tribunal’s decision, finding the agency’s policy was discriminatory and “based on the arbitrary assumption that the need for accommodation on the basis of family obligations was merely the result of choices that individuals make, rather than legitimate need.”

The court found CBSA discriminated against Johnstone based on her family status and ordered the agency to pay her the difference between her part-time pay and what she would have earned full-time for three years she worked after the birth of her children and when she went on unpaid leave. It also upheld the tribunal’s order for CBSA to pay her $20,000 in damages.
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