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EMPLOYMENT LAW
Feb 12, 2013

Being parents: Ground for discrimination?

Federal Court decision seems to raise the bar for family status accommodation
    

By Jeffrey R. Smith

By now, a lot of people have heard about the Federal Court’s Jan. 31 decision that upheld the Canadian Human Rights Tribunal’s determination that an employee’s child care needs can fall under an employer’s duty to accommodate family status.

Many are thinking this will open the door to reams of accommodation requests by employees with children and could leave employers in a tough position.

It’s a very hot topic in the employment law realm — fellow blogger Stuart Rudner, a partner at Miller Thomson, discusses the ramifications of the ruling in his blog.

But here's the facts: Fiona Johnstone and her husband worked for the Canadian Border Services Agency (CBSA) at Pearson International Airport in Toronto. Like other CBSA employees, they both worked a rotating pattern of shifts. When Johnstone became pregnant, she requested regular full-time shifts for the same time each day when she returned from maternity leave. CBSA refused, saying it considered child care related to the employee’s personal choice to have children and its policy was to not grant full accommodation for child care needs. Instead, CBSA offered to reduce her to part-time hours that would better meet her needs.

Because she had no choice, Johnstone took part-time hours when she returned to work. She made another accommodation request when she had her second child, but CBSA again denied it. She then filed a human rights complaint claiming discrimination based on her family status.

The Canadian Human Rights Tribunal agreed with Johnstone and determined she had faced discrimination. The tribunal ordered CBSA to pay her the difference between full-time hours and what she earned for a three-year period following then end of her maternity leave until she went on unpaid leave to follow her husband to Ottawa. Johnstone was also awarded damages for the discrimination she suffered. When CBSA appealed, the Federal Court upheld the award, finding family obligations could constitute a legitimate need, regardless of whether they were the result of choices or otherwise.

It’s important to note that, in this case, the employee requesting accommodation was a shift worker and the employer had other shifts the employee could take to work around her child care arrangements. The decision indicated CBSA was required to investigate the possibility of moving the employee’s shifts, rather than a blanket “no” because of an unwritten policy. It would probably be harder for an employee working standard office hours that were the same from the beginning of the job to be granted similar accommodation if there were no other shifts for employees.

Are child care and other normal parental obligations something that creates a disadvantaged group of employees that is at risk of discrimination? Should they be lumped in with more trying obligations — such as caring for disabled children — under the family status ground for discrimination? And then there’s the argument — which CBSA presented — that employees who choose to have children should be the ones who have to figure out to work that around their existing work responsibilities. If normal parental obligations are something employers must accommodate, doesn’t that in itself create a disadvantaged group of employees who don’t have children but must help compensate for the employer’s accommodation efforts?



Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. He can be reached at jeffrey.r.smith@thomsonreuters.com or visit www.employmentlawtoday.com for more information.

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