The notion that an employer could or should be responsible for ensuring that parents can access childcare is likely a daunting proposition for many companies. Yet, a recent Federal Court of Appeal ruling, Canada (Attorney General) v. Johnstone 2014 FCA 110, suggests that in certain circumstances employers will be faced with the responsibility of helping employees access childcare, at least up to the point where it would constitute an undue hardship to the employer.
This is a case that has wound its way through the federal system, beginning with a 2007 decision of the Canadian Human Rights Tribunal. CCPartners has followed this case through the judicial process throughout, with the last decision of the Federal Court discussed in our Blog entry from February 21, 2013. For reference, both Johnstone and her husband worked at Pearson International Airport on rotating shift schedules. After having a child, Johnstone struggled to find childcare because of the unpredictability of her shift work. She asked for an accommodation to a fixed schedule. Pearson International Airport refused, taking the position that they had no obligation to accommodate such a request.
However, earlier this month the Federal Court of Appeal confirmed that Pearson International Airport in fact did have a duty to accommodate triggered by the protected ground of “family status” under the Canadian Human Rights Act (the “Act”).
This does not mean that employers are faced with this duty to accommodate every time an employee has a child. Rather, the Court has said that “family status” protections under the Act will be subject to the same standard as all other grounds of discrimination. This means that first the employee will have an obligation to demonstrate that his or her childcare needs are an immutable, or a constructively immutable, characteristic. In other words, employers are obligated to accommodate specific child care needs but they are not obligated to adapt to employee preferences.
The Court recognized that human rights legislation should not be trivialized and therefore that family status protections will not extend to “personal family choices such as participation of children in dance classes, sports events like hockey tournaments, and similar voluntary activities”. Rather, the Court expressed the intent that this ground of protection be used to ensure that employees are able to continue to participate in the workforce without discrimination, provided they demonstrate that there are no other reasonable options available for them to fulfill their legitimate childcare obligations.
This decision places family status discrimination claims on an equal level as other human rights grounds. The onus is on the employee to prove that there is an unworkable situation as a result of their conflicting work/family obligations, and the employer is then required to accommodate to the point of undue hardship. Criticism of early “family status” decisions often focused on what appeared to be a different test – at least in some jurisdictions – for family status compared to other grounds of protection; this decision of the Federal Court of Appeal expressly addresses that concern.
The Court also set out the following test for determining if there is a legitimate claim for accommodation:
- that a child is under his or her care and supervision;
- that the childcare obligation at issue engages the individual’s legal responsibility for that child, as opposed to a personal choice;
- that he or she has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible; and
- that the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation.
While this decision is not necessarily universally applicable across all Canadian jurisdictions, it is a significant one. When faced with a request for accommodation based on family arrangements, employers must analyze each case on its particular facts.