Last year, the federal courts found in favour of Fiona Johnstone, a border services employee who alleged she had been discriminated against on the basis of family status. She sought to have her schedule changed to accommodate daycare availability in the area.
At the time, many speculated this would “open the floodgates” to employees with children being able to dictate their work schedules. In my blog on www.hrreporter.com, I opined it would not be relevant to most employees — it would only be applicable where the employee could establish a very significant need.
The decision was recently addressed by the Federal Court of Appeal, which confirmed the lower court’s ruling but also established a four-step test an individual must meet before discrimination on the basis of family status will be found.
The first step is for the employee to demonstrate she made reasonable efforts to secure childcare. In other words, an employee cannot simply say her daycare of choice is only open during certain hours. She would have to lead with very specific evidence showing she had no reasonable options available unless the employer provided accommodation .
Employers should not dismiss requests for accommodation, whether they be for disability or childcare, out of hand. That was a mistake the Canadian Border Services Agency made. All requests should be taken seriously. Once a legitimate need has been established, the employer will have an obligation to consider accommodation options.
However, the employee is not entitled to her preferred form of accommodation — the employer is entitled to ascertain what options are available, and choose one, so long as it is reasonable.
The Federal Court of Appeal decision confirms that childcare obligations are a part of family status, and will be protected. However, the court also confirmed it will only find there was discrimination, or there was a need for accommodation, where a legitimate need can be proven by the individual.
Stuart Rudner is a founding partner at Rudner MacDonald in Toronto. He can be reached at email@example.com or for more information, visit www.rudnermacdonald.com.
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