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CANADIAN HR LAW
Feb 12, 2013

Court sides with new mother who claimed right to set work hours

What does Federal Court ruling mean for your business when employees request accommodation of their childcare obligations?
    
By Stuart Rudner

"Federal Court sides with new mother who claimed right to set work hours"

That was one of the headlines used to describe the recent human rights decision in which the issue of the duty of employers to accommodate their employees' child care obligations came to the fore.

I was interviewed by a Canadian Press reporter for an article that was picked up across the country (see, for example, the Globe and Mail), and the article referred to the decision as a "landmark" one. The issue received enough attention to be covered on television, radio, and print media. I had the privilege of being interviewed repeatedly and asked for my views on the impact of this decision. See, for example, this CTV interview.

As described in the article linked to above:

Both Johnstone and her husband worked as full-time employees of the Canada Border Services Agency, putting in a series of irregular, rotating shifts before their first child was born in 2003. Johnstone asked the agency to accommodate her childcare needs by allowing her to work more stable shifts. The agency declined, saying the only way to maintain a static schedule was to cut back to part-time hours. Johnstone filed a complaint that ultimately came before the Canadian Human Rights Tribunal in 2010.

The tribunal ruled in her favour, saying the agency had discriminated against Johnstone on the basis of her family status.

“The CBSA’s policy was based on the arbitrary assumption that the need for accommodation on the basis of family obligations was merely the result of choices that individuals make, rather than legitimate need."

Fellow blogger Jeffrey R. Smith, the editor of Canadian Employment Law Today, provides a nice roundup of the facts of the case.

This decision should not have been a surprise to anyone that practices in the area of employment law and human rights. It is a continuation of the extension of human rights legislation into the workplace. The notion of family status as a protected ground was, in the past, perceived as protecting employees from adverse treatment because they were married (thinking back to female teachers that were historically not allowed to continue working once married) or because they had children.

Now, the concept has been extended to require accommodation for employees' childcare obligations, which comes as a shock to many employers.

The question on everyone's mind is how this decision affects employers in their day to day operations. I have repeatedly stated it does not give employees with children carte blanche to dictate their hours of work. However, it does mean employers must recognize that their obligations to accommodate workers go farther than they used to, and they should be very cautious when responding to requests for accommodation. In this case, one of the most telling portions of the Court's decision is this:

"Mr. Sheridan articulated the CBSA’s view that employees with childcare responsibilities do not require accommodation. CBSA does consider accommodation for religious or medical reasons but treats non-medical accommodation requests as 'arrangements' outside of any requirement to accommodate. Requests based on family responsibilities for childcare issues were considered the result of a worker’s personal choice for which the employer bears no responsibility."

In other words, the CBSA did not treat the request for accommodation of Ms. Johnstone's childcare obligations seriously, as it would a request for accommodation of a disability. However, the law, as confirmed in this decision, requires accommodation to the point of undue hardship. Employers faced with such a request cannot simply shrug it off as the employee's problem, and they cannot simply respond by saying "there's nothing we can do".

The onus is on employees to provide detailed information regarding the need for accommodation. Once they do so, the parties should engage in a discussion regarding possible forms of accommodation. Employees are not entitled to dictate their preferred form of accommodation; the employer can assess all options and determine if any are viable.

So long as the accommodation chosen does properly address the concern, then the employer will have met its obligation. If the employer determines there is no way of accommodating without suffering undue hardship, it should document its considerations and the reasons for its decision.

Courts and tribunals will not look favourably upon employers who respond with vague statements that it would be impossible to accommodate the request without any evidence that they actually considered whether it could be done.

While "undue hardship" is difficult to define with precision, the cost to an employer will certainly be the primary factor. By way of example, a small business may not be able to find a replacement for certain shifts without a disproportionate cost, but a multinational corporation with thousands of employees will be hard-pressed to show it could not rearrange a few schedules.

It is important to note the same principles will apply to male employees that can demonstrate legitimate childcare obligations, and would presumably also apply to employees with eldercare obligations.

That said, I suspect that an unfortunate and unintended consequence of this evolution in human rights is that some employers will be reluctant to hire women of child-bearing age, which is certainly  not in anyone’s best interests.

Stuart Rudner is an HR Lawyer and a partner in the Labour & Employment Law Group of Miller Thomson LLP, a national law firm. He provides clients with strategic advice regarding all aspects of the employment relationship, and represents them before courts, mediators and tribunals. He is author of You’re Fired: Just Cause for Dismissal in Canada, published by Carswell. He can be reached at (416) 595-8672 or srudner@millerthomson.com. You can also follow him on Twitter @CanadianHRLaw and join his Canadian HR Law Group on LinkedIn.
    
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