A recent Federal Court decision has held that the Canadian Human Rights Act extends protection to employees who require accommodation for parental childcare obligations.

In Johnstone, the complainant, Ms. Johnstone, and her husband, were both customs officers for the Canadian Border Services Agency (CBSA). They both worked full-time hours on irregular, rotating shifts. After the birth of their first child, Ms. Johnstone was unable to arrange for childcare that fit with the couple’s work schedules. She sought permission to work full-time hours in fixed shifts, three days per week. CBSA denied Ms. Johnstone’s request, but permitted her to work fixed shifts on a part-time basis, in keeping with their policy. Ms. Johnstone accepted this work arrangement, but also filed a complaint under the Canadian Human Rights Act (CHRA), contending that the CBSA had engaged in a discriminatory practice on the prohibited ground of “family status”.

The Canadian Human Rights Tribunal found that Ms. Johnstone had suffered discrimination on the  basis of family status. It interpreted the term “family status” to encompass obligations which arise from becoming a parent, and found that the CBSA’s blanket policy of refusing full-time hours to employees for childcare reasons constituted a form of prima facie discrimination. The Tribunal also found that the CBSA had failed to demonstrate undue hardship or a bona fide occupational requirement that necessitated the discriminatory conduct. The Tribunal ordered the CBSA to cease its discriminatory practices and develop a plan to prevent its re-occurrence; to compensate Ms. Johnstone for the wages that she would have earned had she remained as a full-time employee; and to pay Ms. Johnstone $15,000 for pain and suffering and $20,000 in punitive damages.

The matter was appealed to the Federal Court. On appeal, the CBSA argued that the Tribunal had interpreted “family status” incorrectly, and also argued that the Tribunal had applied the wrong test for finding prima facie discrimination on the “family status” ground. The Court rejected both of these arguments. It held that it was reasonable for the Tribunal to interpret “family status” as including childcare obligations in light of the purpose of the CHRA; the ordinary meaning of the word “family”; and earlier human rights jurisprudence. The Court then stated that the test for establishing prima facie discrimination would be made out where it could be shown that an  “employment rule or condition interferes with an employee’s ability to meet a substantial parental obligation in any realistic way”.

The Court was satisfied that there had been sufficient evidence before the Tribunal to support its finding that CBSA’s scheduling policy had interfered with Ms. Johnstone’s abilities to meet her parental obligations. Notably, the Tribunal had found that:

(i) Ms. Johnstone had been unable to secure childcare that matched a rotating shift schedule;

(ii) the CBSA had relied on a blanket policy of denying shift accommodation requests for childcare reasons;

(iii) the CBSA had failed to make any effort to inquire into Ms. Johnstone’s individual circumstances; and

(iv) there had been no factual support to CBSA’s contention that accommodating Ms. Johnstone’s request would affect workplace productivity or scheduling.

Johnstone will clearly have significant implications for employers. Unfortunately, though, the case is somewhat vague on what will constitute a “substantial” parental obligation, and perhaps more saliently, who will get to make that call. At a minimum, though, it is clear that employers can no longer rely on blanket policies of refusing to accommodate employees for childcare reasons, and must be prepared to engage in individualized inquiries where an employee makes a request for accommodation on the basis of a parental responsibility.

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