In the most recent, and perhaps the final chapter of two federal human rights cases dealing with childcare obligations (Attorney General v. Fiona Ann Johnstone and Canadian National Railway Company v. Denise Seeley (May 2, 2014)), the Federal Court of Appeal ruled that an individual’s obligations to provide care to a child fall within the protected ground of “family status” under the Canadian Human Rights Act. The Court also clarified the scope of protection and the type of childcare obligations that are contemplated under “family status”.
Readers of Focus will recall the initial rulings of the Canadian Human Rights Tribunal and the subsequent judicial reviews by the Federal Court (see “Federal Court upholds Tribunal decisions – child care obligations fall within “family status” under Canadian Human Rights Act”). In both cases, Johnstone and Seeley were the parents of young children who could not find adequate childcare to meet the work demands of their employers. In Johnstone’s case, both she and her husband worked for the Canadian Border Services Agency (CBSA) and were required to be available for 24-hour-per-day rotating shifts, making it almost impossible to secure regular childcare. In the case of Seeley, the employer, Canadian National Railway (CNR), required her to relocate from Jasper to Vancouver to cover a labour shortage. The relocation would cause extreme hardship to Seeley due to her parental obligations to her young children.
Johnstone and Seeley both sought and were refused accommodation by their employers and ultimately brought human rights complaints to the Tribunal. In two separate decisions, the Tribunal held that the childcare obligations of a parent fall within the prohibited ground of discrimination of “family status” under the Canadian Human Rights Act (the “Act”) and that the CBSA and CNR had breached the Act by failing to accommodate the childcare obligations of Johnstone and Seeley. These decisions were upheld on judicial review by the Federal Court. Both employers appealed to the Federal Court of Appeal.
In upholding the lower court and Tribunal decisions, the Federal Court of Appeal was unanimous in confirming that the prohibited ground of discrimination “family status” includes an individual’s childcare obligations. However, the Federal Court of Appeal made significant efforts to define the scope of childcare obligations that are afforded protection under the Act. The Court stated that the types of childcare obligations that would be protected “are those which a parent cannot neglect without engaging his or her legal liability”. The protection therefore is limited to what was referred to as “immutable or constructively immutable characteristics”, as opposed to personal family choices, such as participation in extra-curricular activities and similar voluntary family activities. The Court noted that this approach avoids trivializing human rights by extending human rights protection to personal choices.
The Federal Court of Appeal was also clear that in cases involving claims of discrimination based on family status, the determination of whether discrimination has occurred will involve a consideration of the efforts the employee took to seek reasonable alternative childcare arrangements. Only where the employee’s efforts are reasonable and yet unsuccessful will a prima facie case of discrimination be established.
The Federal Court of Appeal went on to clearly set out the elements that an individual alleging discrimination based on family status childcare obligations must establish:
- That a child is under his or her care and supervision;
- That the childcare obligation at issue engages the individual’s legal responsibility for that child, as opposed to a personal choice;
- That he or she has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible; and
- That the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation.
In our view
The Federal Court of Appeal’s judgmentsprovide additional certainty and clarity in terms of the protection afforded to family status under human rights legislation. Employers can take comfort in the aspect of the ruling that confirms that the types of childcare obligations that must be accommodated are those that are essential and engage the individual’s legal responsibility. The protection is not extended to trivial obligations arising from personal family choices. Similarly, the decisions make it clear that the employee must make reasonable attempts to self-accommodate their childcare obligations. The Court in Johnstone specifically commented:
A complainant will, therefore, be called upon to show that neither they nor their spouse can meet their enforceable childcare obligations while continuing to work, and that an available childcare service or an alternative arrangement is not reasonably accessible to them so as to meet their work needs. In essence, the complainant must demonstrate that he or she is facing a bona fide childcare problem. This is highly fact specific, and each case will be reviewed on an individual basis in regard to all of the circumstances.
These factors should operate to limit the number of discrimination claims that employers may face. Nevertheless, employers must ensure that they consider employee requests for accommodation for childcare obligations. Employers should look at each request on an individual basis and consider the particular needs of the employee along with the employee’s efforts to self-accommodate. Policies that set out the employer’s approach to such requests and that contemplate individualized assessments will assist employers in meeting their legal obligations.