A recent Federal Court of Appeal case, Canada (Attorney General) v Johnstone, sheds some light on an employer’s duty to accommodate an employee’s childcare needs.
Fiona Johnstone was employed by the Canada Border Services Agency (“CBSA”) since 1998, where her husband was also employed. When Ms. Johnstone returned to work at Toronto’s Pearson Airport following maternity leave she requested changes to her schedule, as she and her husband were on rotating work schedules and had trouble meeting their childcare needs.
Ms. Johnstone requested a full-time static schedule but CBSA refused, stating that they had no legal obligation to accommodate employees having childcare difficulties. Ms. Johnstone filed a complaint with the Canadian Human Rights Commission on grounds that she had been discriminated against on the basis of family status, a violation of theHuman Rights Act.
The Federal Human Rights Tribunal found that the CBSA had discriminated against Ms. Johnstone by not altering her work schedule to accommodate her childcare needs and that it had failed to demonstrate that accommodating her would result in undue hardship to the organization.
The matter was then appealed and made its way to the Federal Court of Appeal, where the question became whether childcare obligations fell under family status. The court noted that it is only where an employee has attempted to find alternative childcare arrangements and is still unable to fulfill their parenting duties that failing to accommodate him or her will constitute discrimination. Discrimination based on family status requires that:
1) a child is under his or her care and supervision;
2) the childcare obligation at issue engages the individual’s legal responsibility for that child, as opposed to a personal choice (eg. having to leave a young child unsupervised if the employer does not make accommodations may trigger discrimination, while a child having to miss a scheduled extra curricular activity would not);
3) 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
4) that the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfilment obligation.
This decision has made two things clearer – first, the extent to which an employer must accommodate the childcare obligations of its employees; and second, the situations in which employees can expect to be accommodated. In setting out the requirements for accommodation, the Federal Court of Appeal has helped employers and employees better understand how professional obligations interact with personal obligations.
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