Employers are Going to have to be Flexible, The law gets serious about accommodation for employers with family obligations

Nov 08, 2013

As publilshed in Exchange Magazine November/December 2013 

The Federal Court of Canada has confirmed it: Canadian law requires employers to accommodate the care-giving needs of employees with familial obligations to children. 

Canadian human rights legislation strives to ensure that people who have barriers to employment can fully participate in the work force by prohibiting discrimination on protected grounds. Those grounds include “family status”, defined as “being in a parent and child relationship.”

 This can also mean a parent and child “type” of relationship. This ground of discrimination has received inconsistent applications in human rights jurisprudence across the country and has been little understood. In particular it has been unclear on whether the protections extend to the accommodation of broader care giving obligations. 

Some clarity has now been provided by the Federal Court of Canada in its review of the Canadian Human Rights Tribunal’s ground-breaking decision in Johnstone v. Canada Border Services Agency. Fiona Johnstone, a mother of two who worked irregular rotating shift work, filed a complaint in 2004 under the Canadian Human Rights Act which was ultimately referred to the Canadian Human Rights Tribunal.  Johnstone’s husband also worked at the CBSA and they each worked irregular day, evening or night shifts seven days a week, making it impossible for them to find a child care provider. Johnstone therefore requested a fixed shift schedule to allow her to arrange child care for her children. CBSA’s response to the request was that it would provide a fixed shift for Johnstone, but only on a part-time basis. 

Johnstone claimed that refusing to provide her with a fixed shift was a failure to accommodate her on the basis of family status in violation of the Canadian Human Rights Act. In its defence the employer took two main positions: the test for family status discrimination should be higher than that of other grounds of discrimination - specifically that family status discrimination should only be found where there is a “serious interference” with a “substantial parental obligation”; and it would suffer undue hardship if it was required to accommodate Johnstone. The Tribunal rejected the employer’s arguments and determined that the threshold for demonstrating discrimination in a family status case should be no different than for any other ground of discrimination. The Tribunal did not find evidence that the employer would suffer undue hardship if it was required to accommodate Johnstone. 

The Tribunal rejected the employer’s submission that there would be health and safety concerns associated with Johnstone working shorter fixed shifts and also rejected the expert evidence suggesting that providing accommodation to Johnstone would create an unmanageable situation where it would have to accommodate all child care requests. 

The Tribunal determined that the CBSA failed to accommodate Johnstone’s family status obligations, and such conduct was in violation of the law and deprived Johnstone of employment opportunities. The Tribunal ordered CBSA to pay Johnstone for lost wages and pension benefits, as well as to pay her $15,000 in damages for pain and suffering and $20,000 in special damages for the employer’s deliberate conduct in the matter. 

The CBSA filed an appeal with the Federal Court of Canada, which upheld the Tribunal’s decision emphasizing that employers cannot discriminate against employees with family obligations and in certain circumstances this requires accommodation of child care needs. The decision confirms that family status must be offered the same protection granted to all the other prohibited grounds of discrimination under human rights legislation. 

Provincial jurisprudence has not confirmed this threshold for establishing a case of discrimination on the ground of family status; however administrative tribunals, courts and arbitrators regard human rights jurisprudence from other provincial and federal authorities as persuasive and therefore this ruling should be considered by employers in all Canadian jurisdictions. The Ontario Human Rights Tribunal did recently visit the interpretation of “family status” and threshold for discrimination in the context of elder care obligations in Devaney v. ZRV Holdings Limited, 2012 HRTO 1590. It was found that the employer’s failure to reasonably accommodate an employee’s elder care responsibilities may result in a finding of unlawful discrimination on the basis of family status. 

The reality of 2013 Canadian culture is that most familial caregivers are working to bring income into the household. Many employees are overloaded by dual demands of work and family. It is now clear that the Canadian Human Rights Act protects Canadians from such a disadvantage and requires employers to carefully consider each and every family status accommodation request and accommodate them short of undue hardship. 

Although to employers, the Federal Court’s ruling in Johnstone may seem to be an overly broad application of the human rights legislation and therefore have the potential for the floodgates to open, ensuring employees have work life balance and can meet their familial obligations will go a long way to enhancing the psychological health of the work force which should enhance job satisfaction, attendance, productivity and the bottom line. It would be prudent for employers to take a fair approach in discussing flexible options with employees when their work obligations have a significant impact on the employee’s family obligations including child care and elder care needs.

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