Denial of extended leave for breast-feeding a form of sex discrimination – Alberta arbitrator

Employers designing leave policies may have to consider a trend exemplified by a recent decision of an Alberta arbitrator. That decision held that it is discriminatory for an employer to refuse to vary its parental leave policy to accommodate a breast-feeding employee.

The case, Carewest v. Health Sciences Association of Alberta (January 8, 2001), arose from the grievance of an employee who was terminated following her refusal to report to work at the end of her approved leave of absence. The grievor, a recreational therapist at a continuous care facility, had gone on maternity leave of six months about a month before the birth of her baby. She extended her leave to nine months as permitted under the collective agreement.

The grievor was committed to breast-feeding her baby, but experienced difficulties doing so, including initial problems in getting her baby to nurse and mastitis, an infection of the internal breast tissue. While the grievor had met with some success feeding her baby pumped breast milk from a bottle, by the time the baby was six months old, she refused to feed from the bottle. However, by this point, the grievor was able to meet the baby’s nutritional through breast-feeding and some solid foods.

Then a further complication arose when the baby had to be taken off solid foods due to ear problems. Therefore, at the time of the grievor’s scheduled return to work, the baby was neither feeding from a bottle nor taking solid food. Her only source of nutrition was breast-feeding.

To meet her goal of breast-feeding her baby as long as necessary, the grievor requested a six-month extension of her leave. The employer refused, stating that there was no indication of ill health either of the grievor or her baby.

The grievor responded by offering to accept a three-month extension of her leave. As well, she offered to return to work on two weeks notice should her replacement resign. The employer was unmoved, and in a subsequent letter to the grievor, it cited concerns about having to deal with a new patient clientele, and reliance on temporary staff. The employer stated that it was open to the grievor to use her breaks and lunch hour to pump breast milk for her baby. This was the extent of the employer’s willingness to entertain suggestions as to how to accommodate the grievor, despite its claiming to be open to alternative solutions.

After refusing to report to work on the scheduled date, the grievor was terminated. She filed a grievance and a complaint with the provincial Human Rights Commission.

A FORM OF SEX DISCRIMINATION

Citing the case law on sex discrimination, the arbitrator stated that breast-feeding, although a matter of choice, was “an immutable characteristic, or incident of gender and a central distinguishing feature between men and women”. He added:

    “Breast-feeding is a choice only a woman can make at birth but, once made, benefits the woman, her child and society as a whole. Breast-feeding in my view is as intimately connected to childbirth as pregnancy is to childbirth and should be safeguarded in the same way. I therefore agree … ‘that discrimination on the basis that a woman is breastfeeding is a form of sex discrimination’.”

The employer, never having been faced with a request such as this before, had simply refused to vary its policy of requiring all employees to work their scheduled hours. This policy, the arbitrator noted, was discriminatory because a woman who continues breast-feeding when she is scheduled to return to work may be unable to perform her duties.

DOOR SHUT BY EMPLOYER

The burden is on the employer to show that the employee has been accommodated to the point of undue hardship. This, the arbitrator ruled, the employer failed to do. Rather, it was the grievor who had shown some flexibility in offering to accept a shorter leave and to return on two weeks notice if necessary. The arbitrator stated:

    “It appears to me that the employer was simply not prepared to entertain any alternative other than the one it had proposed of allowing the grievor to express or pump her milk during her scheduled breaks. I agree that the door was basically shut by the employer … [and the employer] essentially refused to accept that [it] had any overriding responsibility to accommodate the grievor.”

By contrast, the grievor’s decision to stay at home was reasonable given what she had gone through in feeding her baby. Accordingly, the arbitrator held that the employer had failed to accommodate the grievor to the point of undue hardship, and ordered that she be reinstated.

In Our View

It should be noted that the employer’s policy was held to be rationally connected to the performance of the grievor’s duties and that it had been imposed in good faith in the belief that it was necessary to the performance of those duties. However, as in so many human rights cases, the central issue is whether it is impossible to accommodate the grievor short of undue hardship. Put another way by the arbitrator in this case, “the human rights principle of looking beyond the work rule or standard to see if it leads to discrimination … is now at the heart of the analysis in cases of this kind”.

Clearly, employers should be prepared to demonstrate more openness to the needs of breast-feeding mothers in the future, and must be prepared to show that they have attempted to be innovative yet practical in dealing with these issues.

For further information, please contact Jennifer Birrell at (613) 563-7660, Extension 261.

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