The Federal Court recently upheld two groundbreaking decisions of the Canadian Human Rights Tribunal relating to discrimination on the basis of family status. In Attorney General of Canada v. Johnstone (January, 2013) and Canadian National Railway v. Seeley (February, 2013), the Federal Court confirmed that a parent’s child care obligations fall within the meaning of family status under the Canadian Human Rights Act. This means that employers are under a legal obligation to accommodate the child care obligations of employees.
The Tribunal’s decision – “family status” includes child care obligations
Readers of Focus may recall the Tribunal’s 2010 decision in Johnstone because of the broad interpretation afforded to “family status” under the Canadian Human Rights Act (the “Act”) (see Canadian Human Rights Tribunal delivers landmark decision on “family status” under the Canadian Human Rights Act). The facts giving rise to the case began in 2003 when Fiona Johnstone, a customs inspector for the Canada Border Service Agency (“CBSA”) returned to work following a maternity leave. Upon her return, she faced the challenge of finding child care in circumstances where both she and her spouse, a fellow customs officer, were required to be available for 24-hour-per-day rotating shifts. Johnstone asked the CBSA to accommodate her with three fixed 13-hour shifts per week, in order to secure child care for the time she spent at work.
The CBSA refused the request citing its unwritten accommodation policy that restricted fixed shifts to part-time hours to a maximum of 34 hours per week. Johnstone eventually settled for three 10-hour shifts per week, however, she was dissatisfied that she had been forced to accept part-time employment in return for securing the fixed shifts. Johnstone complained to the Canadian Human Rights Commission but her claim was dismissed. Johnstone successfully applied to the Federal Court to quash the Commission’s decision and the matter was sent back to the Commission to be decided on the merits.
In its consideration of Johnstone’s complaint, the Tribunal applied a broad purposive interpretation of the Act and found that child care obligations fall within the meaning of “family status” under the Act.
…the underlying purpose of the Act as stated is to provide all individuals a mechanism “to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society”… It is reasonable that protections so afforded include those naturally arising from one of the most fundamental societal relationships that exists, that of parent to child. [Emphasis Added]
The Tribunal went on to find that Johnstone had established a prima facie case of discrimination on the basis that the CBSA’s policy adversely differentiated Johnstone on the basis of her family status. The CBSA was not able to convince the Tribunal that the discriminatory practice was a bona fide occupational requirement or that accommodating Johnstone’s child care obligations would create undue hardship.
Johnstone was awarded lost wages and benefits, including overtime, as well as pension contributions that would have been made had she been able to work on a full-time basis since January 4, 2004 (when she began working part-time). The Tribunal also awarded Johnstone $15,000 for damages for pain and suffering, as well as special compensation in the amount of $20,000 for the CBSA’s willful and reckless conduct.
Tribunal applies Johnstone in Seeley
Shortly after the Tribunal decided Johnstone, another human rights decision involving family status and child care obligations was released. In Denise Seeley v. Canadian National Railway (2010) the employee complained that her employer, Canadian National Railway (“CN”), had discriminated against her on the basis of family status by failing to accommodate her child care obligations. The facts giving rise to the complaint began in 2005, when CN was experiencing a shortage of employees at its Vancouver terminal. At the time of the Vancouver shortage, Denise Seeley (the “employee”) was living in Jasper, Alberta. She had been laid off by CN. In accordance with the collective agreement, in February of 2005 she was recalled to work to cover the shortage in Vancouver.
The employee, who was the parent of young children, would face extreme hardship if forced to relocate from Jasper to Vancouver. She approached the employer and sought accommodation of her child care and family obligations. CN’s policy however was to not allow a senior employee to bypass an opportunity to work on the basis that such a worker would not be protecting their seniority. Although CN initially gave the employee an extension for when she was required to report to work in Vancouver, in July of 2005 CN dismissed the employee for failing to relocate. The employee filed a human rights complaint alleging that CN had discriminated against her on the basis of family status by failing to accommodate her child care obligations, and by terminating her employment.
The Tribunal adopted the approach from Johnstone and applied the low threshold test for determining whether there was a prima facie case of discrimination:
…the evidence must demonstrate that the complainant is a parent, that she has duties and obligations as a member of society and further that she was a parent incurring those duties and obligations. As a consequence of those duties and obligations, combined with the respondent’s conduct, the complainant must prove she was unable to participate equally and fully in employment…
The Tribunal noted that the employee was a parent subject to the duties and obligations generally incurred by parents. The evidence showed that the employee was unable to participate equally and fully in employment with CN due to her parental obligations and CN’s rigid rules and practices. The conflict between the parental obligations of the employee and the policies of CN resulted in the dismissal of the employee.
Having established a prima facie case of discrimination the onus then shifted to CN to demonstrate that their discriminatory standard of requiring the workers to cover shortages in other regions was a bona fide occupational requirement. As was the case in Johnstone, CN was unable to demonstrate that it could not accommodate the employee and others like her without undue hardship. Similar to the CBSA’s arguments in Johnstone, CN argued that because so many of its employees were parents, accommodation of the complainants would “open the floodgates” to similar requests. The Tribunal was not persuaded by this argument. It noted the lack of evidence supporting this argument and quoted the Ontario Divisional Court in Lane v. ADGA Group Consulting Inc (2007):
Undue hardship cannot be established by relying on impressionistic or anecdotal evidence, or after-the-fact justifications. Anticipated hardships caused by proposed accommodations should not be sustained if based only on speculative or unsubstantiated concern that certain adverse consequences “might” or “could” result if the claimant is accommodated.
The Tribunal cited the fact that the undue hardship analysis must be applied in the context of the individual accommodation being requested, and therefore that the employee’s individual assessment is an “essential step” in the accommodation process. Of particular importance to the Tribunal was the fact that CN did not at any point conduct an individual assessment of the special needs of the complainant. The Tribunal saw this as part of a larger failure on the part of CN to show that it had met the procedural component of the duty to accommodate by considering and reasonably rejecting measures that would have accommodated the particular needs of the complainant.
The Tribunal found that CN breached the Act through its practices and policies and the resulting adverse effects on the complainant because of her family status. CN was ordered to reinstate the employee and to compensate her for lost wages and benefits. The Tribunal also awarded $15,000 to the complainant for pain and suffering, and $20,000 to the complainant as additional compensation for CN’s willful and reckless conduct. Finally, CN was ordered to review its accommodation policies in consultation with the Canadian Human Rights Commission to ensure that it has the appropriate policies in place and to provide workplace training on issues of discrimination, human rights and in particular accommodation on the grounds of family status.
Judicial Review of Johnstone and Seeley
The Johnstone and Seeley cases came before the Federal Court as a result of the Attorney General of Canada and Canadian National Railway applying for judicial review of the Tribunal’s decisions. In each case, the applicants argued that the Tribunal erred in adopting an overly broad interpretation of “family status”. In their view, the proper interpretation was one which would operate to prevent individuals from being discriminated against on the basis of arbitrary or stereotypical assumptions relating to their family status.
This interpretation was rejected by the Federal Court. Like the Tribunal, the Federal Court applied a broad, purposive interpretation stating that “it is difficult to have regard to family without giving thought to children in the family and the relationship between parents and children”. In the view of the court, the inclusion of child care obligations in the definition of family status was reasonable and consistent with the objects of the Act.
On the issue of whether a prima facie case of discrimination was established, the applicants argued that the Tribunal failed to apply the correct test. In their view, the proper test was set out in Health Sciences Assoc. of B.C. v. Campbell River and North Island Transition Society (2004)( “Campbell River”):
…a prima facie case of discrimination is made out when a change in a term or condition of employment imposed by an employer results in a serious interference with a substantial parental or other family obligation of the employee… [Emphasis Added]
Justice Mandamin, the judge in both Johnstone and Seeley, rejected the higher threshold of “serious interference”. He acknowledged that the child care obligations of the employee must be one of substance, and that the employee must have tried to reconcile the family obligations with the work obligations. Nevertheless, he found that requiring the higher threshold of “serious interference” would lessen the protection of family status as compared to other protected grounds of discrimination. Justice Mandamin stated that the proper test for a prima facie case of discrimination was whether the employment rule interferes with an employee’s ability to fulfill her substantial parental obligations in any realistic way. Based on the evidence, Justice Mandamin concluded that Johnstone and Seeley had satisfied this test. He dismissed both applications for judicial review and, subject to certain minor modifications of the award in Johnstone, upheld the awards of the Tribunal.
“Family status” and child care obligations in Ontario
In Ontario, there has yet to be a significant decision from the Human Rights Tribunal which deals with family status and child care obligations. In spite of this, the OHRC “Policy on Discrimination because of Family Status” does recognize that family status includes child care obligations. It states:
In many cases, the best approach to accommodating needs relating to caregiving is by increasing the flexibility and options available to all workers. This approach is in harmony with the principle of inclusive design, contributes towards employee satisfaction, productivity and retention, aids in employee recruitment, and reduces the need to deal with multiple individual requests.
The OHRC Policy goes on to recommend that employers consider a number of policies to accommodate child care needs including:
- Flexible hours programs;
- Compressed work weeks;
- Reduced work hours; and
- Job sharing.
In the cases that have considered discrimination on the basis of family status, and more specifically child care obligations, Ontario arbitrators have seemed reluctant to adopt either of the Johnstone test, or the Campbell River test to determine a prima facie case of discrimination. The concern is that the Johnstone test may be overly broad, while the Campbell River test may be overly restrictive. Some Ontario arbitrators have opted for a “blended approach” which was set out by Arbitrator Ponak in Re Government of Alberta (Solicitor General Department) and Alberta Union of Provincial Employees (Jugworth) (2010):
From the review of the jurisprudence, the Board concludes that family status discrimination claims based on parental obligations involve a careful assessment both of the parental obligation and the degree of interference with this obligation as a result of a bona fide work requirement. The Board accepts that all work requirements have some degree of interference with parental obligations. Absent express public policy, such as that enacted with respect to maternity leave, family status discrimination cannot possibly be interpreted as arising in any situation in which a work requirement results in some interference, no matter how minimal, with a parental obligation. In order to work, all parents must take some steps on their own to ensure that they can fulfill both their parental obligations and their work commitments. Part of any examination of whether a prima facie case has been established for family status discrimination must therefore include an analysis of the steps taken by the employee him or herself to balance family and worklife responsibilities.
Another Ontario family status discrimination case worth noting is Devaney v. ZRV Holdings Limited (August, 2012). Although this case involved eldercare as opposed to child care, the Human Rights Tribunal’s approach to the determination of discrimination on the basis of family status is nevertheless instructive. In Devaney, the employee, an architect with 27 years of service with the employer, was the primary caregiver of his ailing mother. His care giving duties were extensive and included food preparation, shopping, cleaning, and bringing his mother to medical appointments and surgeries. In order to provide this level of care, the employee would often be late, absent from work, or would work from home. As his mother’s health continued to decline, his attendance at the office became more irregular and his tardiness became more frequent. The employer attempted to correct this behaviour and issued numerous warnings demanding that the employee be present in the office during regular work hours. The employee’s attendance did not improve and he was eventually dismissed for cause. The employee filed an Application under the Ontario Human Rights Code alleging discrimination on the basis of family status.
In determining whether a prima facie case of discrimination on the basis of family status was established, the Tribunal applied a new test in which the focus was on the distinction between the family responsibilities of the caregiver and his or her choices or preferences. If it is the caregiver’s choice, rather than family responsibilities, that preclude the caregiver from attending work, a prima facie case is not established. In the Tribunal’s view, this approach was consistent with the Code principle that accommodation is required for Code-related needs, not preferences.
In applying this test to the facts of the case, the Tribunal found that the employee’s family care requirements were a significant factor in the dismissal. The employer’s strict requirements for attendance had an adverse impact on the employee given his care responsibilities to his mother. In the Tribunal’s view, a prima facie case of discrimination was established. Since the employer did not make any attempts to accommodate the eldercare needs of the employee, and since there was no evidence of undue hardship, the employee was awarded $15,000 for injury to his dignity, feelings and self-respect. The employer was also ordered to develop a workplace human rights policy, and to provide mandatory human rights training to management and staff.
In our view
The Federal Court’s decisions in Johnstone and Seeley reinforces the fact that child care obligations of employees fall within the meaning of family status, and that employers are under a legal obligation to accommodate such child care obligations. Employers should develop policies for addressing requests for accommodation for child care obligations. Employers must also remember that accommodation policies cannot be applied in a blanket way and each request for accommodation must be considered on an individual basis.
Both the CBSA and CN are appealing the Federal Court’s decisions. We will keep our readers informed of any developments.
For further information, please contact Jennifer Birrell at (613) 940-2740.