Are Canadian employers required to accommodate child care challenges of their employees? Is this covered by “family status?” A recent decision of the Canadian Federal Court in AG Canada v. Johnstone has sided in favour of employees in addressing issue.
The case involved a border services officer, Fiona Johnstone, who was working at Pearson Airport for the Canadian Border Services Agency (“CBSA”). She had been working on rotating shifts. After the birth of her children, she requested that she be able to work regular, fixed day shifts to accommodate her child care needs. She claimed that she could not make child care arrangements that would support the rotating work schedule that she had been on and that her employer should accommodate her requirements by providing her with regular full-time day shifts. The CBSA refused to accommodate her and she filed a human rights complaint with the Canadian Human Rights Commission alleging discrimination on the basis of family status.
In August 2010, the Canadian Human Rights Tribunal allowed Ms Johnstone’s human rights complaint. It held that the CBSA had discriminated against Ms Johnstone on the basis of family status and that she was entitled to accommodation. One of the key findings was that the definition of “family status” under the Canadian Human Rights Act includes parental child care responsibilities. It ordered the CBSA to establish policies that would address family status accommodation issues and to accommodate Ms Johnstone. It also ordered monetary damages of $35,000 for pain and suffering and for the fact that the CBSA had deliberately denied protection to those seeking family status accommodation.
The CBSA brought an application for judicial review in the Federal Court of Canada.
In its decision released on January 31, 2013, the Federal Court upheld the Tribunal ruling. It determined that “family status” under human rights legislation – the Canadian Human Rights Act, in particular, includes child care responsibilities. The Federal Court noted that many border services officers face difficulties with their work-life balance as a result of working for a 24-7 operation that requires employees to work rotating shifts. However, the Court held that the CBSA was still required to consider Ms Johnstone’s particular situation and accommodate her. The CBSA made no attempt to do so. The Federal Court therefore upheld the Tribunal’s decision, including the award of damages to Ms Johnstone.
In many respects, the Federal Court’s decision is not surprising. Employers have been required, under Canadian human rights law, to accommodate employees for religious reasons, including for example, the right to Sabbath observance or the right not to work on religious holidays. Employers have also been required to accommodate employees to the point of “undue hardship” with respect to disability issues. So it makes sense that Courts and Tribunals would find an obligation of accommodation for other human rights categories.
Defining “family status” to include child care obligations is not without its challenges. Employers may have numerous employees, at any given time, who are struggling with child care arrangements. It may be that some employers will be able to provide evidence of “undue hardship” by demonstrating that they require employees to work rotating shifts – even on some kind of alternating basis and they cannot accommodate all of the requests for full-time day shifts. Tribunals and Courts will need to look at the size of the workplace, the ability of the employer to accommodate its employees and other relevant issues. Employees will also be expected to make some efforts to address their employers’ concerns.
The Federal Court decision does not stand for the proposition that any employee with child care needs can automatically insist on working a full-time day shift while all of the other employees at that workplace are working rotating shifts at all hours. However, the case does require employers to consider these requests and to try to come up with a way of addressing them. The CBSA in this case had rejected the idea that it had any obligation to accommodate its employees’ child care needs and that was found to be a violation of the Canadian Human Rights Act.
Many employers across Canada have already implemented policies that provide for reasonable accommodation of employees with child care challenges. Employers who have not done so may be required t reexamine their policies so that they are meeting their obligations under human rights legislation.
This type of accommodation may not be limited to child care but may also include people with elderly-care responsibilities or employees who must care for infirm or challenged family members.