'This is an interesting case where a lot of it came down to credibility'
The Federal Court of Appeal has upheld the dismissal of a worker’s claim of family status, religious, and disability discrimination stemming from the end of a telework arrangement.
“This is an interesting case where a lot of it came down to credibility,” says Isabelle Keeler, an employment and labour lawyer at Cox & Palmer in Charlottetown. “A lot of the relevant evidence, when it came down to the test for discrimination, [the worker] was speaking in really general terms - she wasn't providing evidence that was required to establish that prima facie case.”
The worker was a lawyer who was a member of the Revenue Prosecution for the office of the Attorney General of Canada. In 2012, she joined the Toronto Amalgamated Team responsible for federal prosecutions in the city. She primarily worked at the Old City Hall courthouse downtown, which is the busiest criminal court in Canada.
The worker was married with five children, one with health-related needs and another with learning disabilities that required her active participation in their medical and educational care. Her children attended orthodox Jewish schools without transportation, so she had to either drive them or carpool with other parents. She also had to help them with Hebrew homework.
The worker entered into a telework agreement that allowed her to work from home two days a week. This helped her balance her work responsibilities with her religious and parenting duties, along with her own health needs. In particular, she was able to be home by sundown on Fridays, which allowed her to light Shabbat candles, something that Jewish mothers commonly did.
The worker also worked extra time each day, which provided an extra day off every four weeks.
Telework arrangement ended
By 2016, the Attorney General’s office determined that the telework arrangement wasn’t feasible any longer, as it restricted what work could be given to the worker – members of the team had to be in court three to five days per week. Early in 2016, the worker was advised that the telework agreement would not be renewed.
After the arrangement ended, the worker wasn’t always able to make it home to light the Shabbat candle on Fridays and she sometimes had to take leave in order to observe religious holidays. The worker also claimed that she was unable to attend many medical appointments and school meetings that were related to her children’s needs.
The worker also claimed that her health suffered, as she became exhausted, lost sleep, suffered from increased anxiety, and functioned at a reduced capacity. She eventually took a medical leave due to stress.
The worker filed a grievance, alleging that the employer discriminated against her by refusing to accommodate her religious beliefs, family status, disability, and the combined effects of all of those grounds.
The Federal Public Service Labour Relations and Employment Board denied the grievance, finding that the worker exaggerated the effects of the revocation of the telework agreement and her evidence of her family responsibilities was “couched in generalities.”
A Saskatchewan court dismissed a worker’s claim of family status discrimination stemming from a rejection of time off for eldercare.
No evidence of self-accommodation efforts
The board found that the worker did not show that she had made reasonable efforts to meet her legal childcare obligations through reasonable alternatives, which was part of the test for prima facie family status discrimination established in Canada (Attorney General) v. Johnstone, 2014 FCA 110, for federally regulated employers.
“In essence, the Johnstone test puts the onus on the employee to establish that they were taking those accommodating steps - which differs from the general approach that's taken for protected characteristics and human rights cases in every other jurisdiction in Canada, which is the Moore test,” says Keeler.
However, Keeler notes that the worker’s challenge of this approach to family status discrimination is in line with a movement in other jurisdictions towards using the less-onerous Moore test.
“The Johnstone approach is good law for federally regulated employers, but the test for family status still very much depends on the province you're in,” she says.
The board also found that the employer offered the worker reasonable accommodation to support her religious practices by allowing her flexibility on Friday afternoons, wherever possible. It was the worker’s own lack of planning that contributed to any adverse impact on her religious practices that she may have experienced, said the board, noting that accommodation need not be perfect or take the employee’s preferred form.
A BC worker who was a single father received $500,000 in damages for years of family status discrimination by his employer.
Worker lacked credibility
The board pointed to the fact that the worker didn’t initially reveal that a Friday afternoon court appearance that caused her to be late for the candle lighting was scheduled by the worker, not the employer, as one of the issues with her evidence. An example of the worker’s exaggeration was that she claimed her family responsibilities involved 50 dental appointments. However, her dental claims revealed that the number was actually 20 and only 16 were related to her children – and 11 were on days that she would not have been home as part of her telework arrangement anyway.
The worker also provided letters from her children’s pediatrician that were actually written by the worker and just signed by the doctor, and she provided no specific evidence about the role her husband played in the operation of the family unit – medical appointments, school meetings, and helping with homework were joint responsibilities, said the board.
The board also found that the worker didn’t provide medical evidence to show that she had a medical disability.
The board noted that the intersection of different forms of discrimination could have an additional effect, as her family responsibilities were linked to her religious beliefs, but such effect must still be founded in the evidence.
The BC Court of Appeal recently reassessed the test for family status discrimination.
Judicial review
The worker applied for judicial review to the Federal Court of Appeal, arguing that the board didn’t properly consider her evidence and ignored the effects of intersectionality on her discrimination as a Jewish mother with a disability with children who also have disabilities.
The appeal court found that there was no procedural unfairness and the board sufficiently considered the evidence provided by the worker. It agreed that the worker’s evidence was general and often exaggerated, failing to meet the test that she suffered adverse impacts in her employment due to family status and religion.
It also agreed that there was no evidence of a disability that needed protection by human rights legislation.
The Court of Appeal recognized that “when multiple grounds of discrimination are at play, the whole may be greater than the sum of its parts,” as there could be a compounding effect that creates unique discriminatory effects different from that experienced by groups related to individual protected grounds. However, it agreed with the board that the worker’s evidence had failed to establish any discrimination related to any of the three grounds claimed by the worker, and the lack of specific evidence applied to the assessment of intersectionality of the grounds.
“I think it reflects the reality that where there's multiple prohibited grounds at play, discrimination may result from that compounding effect,” says Keeler. “And the court was pointing that out, where you have these multiple grounds present and it's impacting an individual's right to substantive equality - it's certainly something that tribunals and courts are tuned to, and they were here.”
A company constructively dismissed a worker after unilaterally changing her work-from-home arrangement after 22 years, an Ontario court ruled.
Board’s decision reasonable
The Court of Appeal determined that the board’s analysis of the worker’s evidence and arguments for family status and religious discrimination was reasonable and dismissed the worker’s application for judicial review.
If an employer receives a request for telework or any other arrangement that’s because of an employee’s family status, the employer needs to be aware of the favoured test in its jurisdiction and get whatever information it needs to make a fair and informed decision, says Keeler.
“At the end of the day, if they've received a request for family status accommodation, the employer should in good faith be making additional inquiries and collecting additional information to determine whether or not the duty to accommodate is triggered and whether it's to the point of undue hardship,” she says. “Find out whether the individual requesting the family status accommodation has a legal responsibility to care for the child and ascertain whether the accommodation request is a personal preference of the employee or whether it's a necessary to fulfill the legal requirements.”
