On January 31, 2013, the Federal Court of Canada released a groundbreaking decision with respect to family status that is likely to become precedential across the country.
Fiona Johnstone was a Border Services Officer at Pearson International Airport. Her position involved shift work and unpredictable hours. After having children Johnstone found that she could no longer work the regular schedule due to her new role as a caregiver; she was unable to find daycare for her children that corresponded with her work schedule. She sought accommodation of her schedule similar to the accommodation persons with medical issues would receive from the employer. Her requests were denied. Johnstone brought her complaint to and was successful at the Canadian Human Rights Tribunal.
The Attorney General then brought the matter to the Federal Court for judicial review, specifically to determine whether the term “family status” in the Canadian Human Rights Act includes parental childcare obligations. The Attorney General argued that the Tribunal erred in adopting an overly broad interpretation of “family status”. It submitted that the other Border Services Officers with children faced the same difficulties and they managed to resolve their childcare challenges.
Johnstone brought in an expert witness to testify about the challenges of finding childcare in light of her schedule. She submitted evidence about the steps she had taken and how she looked at both regulated and unregulated childcare providers and simply could not find one given her unique schedule.
The Court agreed with the Tribunal that Johnstone had been discriminated against on the basis of family status. Accommodation of Johnstone’s needs would not have created an undue hardship for the employer. The employer did not attempt to look at Johnstone’s particular circumstances and instead relied on a blanket policy.
It is noteworthy that both the Court and Tribunal made statements to clarify that not all work/life balance dilemmas should result in a human rights complaint. In particular, the Court stated that:
It is when an employment rule or condition interferes with an employee’s ability to meet a substantial parental obligation in any realistic way that the case for prima facie discrimination based on family status is made out.
It is fairly clear that in cases involving family status, employees must be able to demonstrate that they took reasonable steps to find child care, and employers must be able to demonstrate that they devoted a reasonable amount of attention to the individual request.
This decision will create new opportunities for employees while creating new challenges for employers. However, it is noteworthy that this decision should be read in conjunction with a recent Ontario Human Rights Tribunal decision about family status that created a distinction between needs and preferences. It is also noteworthy that family status encompasses not only child care, but also elder care responsibilities.
If you have questions about childcare accommodation and the duty to accommodate family status, contact us at Lisa Feldstein Law Office Professional Corporation.
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