CN’s appeal of discrimination finding dismissed; must pay $35,000 and lost wages to employee with kids who refused assignment
Personal choice or protected ground?
In recent years, there has been a lot of discussion over family status as a ground for discrimination. It’s been included in human rights legislation along with things like race, religion and background, but hasn’t really been defined. Increasingly, courts and arbitrators are finding parental responsibilities should be included in the elements of family status that should be protected from discrimination. Though some employers argue having children and living in a specific area with child care limitations is a personal choice, they’re finding they may still have a duty to accommodate when an employee has a conflict between work and their parental duty.
The Federal Court has upheld a Canadian Human Rights Tribunal ruling that the Canadian National Railway (CN) discriminated against an employee who had child care responsibilities.
Denise Seeley was a freight train conductor for CN based out of Jasper, Alta. Seeley had been hired in 1991 and became a conductor two years later. Her husband also worked for CN as a locomotive engineer and they had two children, born in 1999 and 2003. They lived in a town 98 km from Jasper.
In 1997, Seeley was laid off. As part of the collective agreement, she continued to accumulate seniority and performed occasional work for CN on emergency calls. The collective agreement also allowed CN to protect against labour shortages in particular terminals by recalling laid-off employees, in order of seniority, with 15 days’ notice.
In February 2005, CN faced a shortage of conductors at its Vancouver terminal. The railway recalled 47 laid-off employees to cover the shortage. Seeley was one of these employees and was given notice on Feb. 26, 2005.
Seeley first requested a 30-day extension of the reporting deadline and then wrote to CN requesting to be relieved from the Vancouver assignment. Her reasoning was that she had two young children, six years old and 21 months, with no immediate family nearby to help care for them. Local daycare options only took care of regular business hours and her husband was away at work for 14 to 24 hours at a time.
When Seeley initially requested the 30-day extension, she explored various child care options but was unsuccessful in finding anything suitable. At that point, she asked to be relieved due to her child care responsibilities.
Child care responsibilities a personal matter: Employer
CN maintained that Seeley was required to report to Vancouver under the collective agreement, though it extended her reporting date three times until June 30, 2005. It finally asked her whether she was going to report and if she didn’t, her employment would be terminated. Seeley responded by saying she was waiting for a decision on her request for compassionate allowance.
On July 4, 2005, CN terminated Seeley’s employment for failing to cover the shortage in Vancouver as requested. Seeley filed a complaint of discrimination based on family status with the Canadian Human Rights Commission.
The Canadian Human Rights Tribunal found family status included child care obligations, and Seeley had established a prima facie case of discrimination based on family status. CN’s requirement for her to cover the Vancouver shortage made it impossible to arrange for appropriate child care and Seeley’s parental duties and obligations made her unable to fully and equally participate in employment with CN, due to the railway’s rules and practices, said the tribunal.
The tribunal also found CN had “a comprehensive accommodation policy” and the collective agreement allowed for CN to exempt employees from covering shortages if they had a “satisfactory reason.” CN’s failure to investigate accommodations options contributed to the discrimination, said the tribunal.
In a September 2010 decision, the tribunal ordered CN to reinstate Seeley without loss of seniority and pay her $35,000 in damages plus lost wages and benefits. CN appealed the decision to the Federal Court, arguing the balancing of family life obligations – resulting from an employee’s personal choice -- and employment duties shouldn’t be transferred from the home to the workplace.
Human rights legislation cannot intend that “an employee could choose to live in a location with few child care options, and require her employer to accommodate her child care needs until such time as she chose to move elsewhere,” said CN.
The court noted “there are many situations that may arise with respect to family status and employment, some which would not constitute grounds for a finding of discrimination on the basis of family status on a prima facie basis, some of which would.” As such, it was important to examine the “individual’s circumstances” which can affect whether there is discrimination on a basis of reasonableness, said the court.
The court also noted the Canadian Human Rights Act, while including family status as a protected ground, does not specifically define the term, though the Supreme Court had held that human rights legislation “must be interpreted in a large and liberal manner in order to attain the objects of the legislation.”
Parental obligations centralto family status: Court
The court found the parental relationship was central to the notion of family status, and “if Parliament intended to exclude parental childcare obligations, it would have chosen language that clearly said so.” When the tribunal interpreted family status has including childcare obligations, it was “within the scope of the ordinary meaning of the words” and was a liberal interpretation in accordance with the act and Parliament’s intent, said the court.
Though CN had facilities in Vancouver that could be available to assist in childcare needs, neither Seeley nor her husband had knowledge of them and CN did nothing to inform them, said the court. When Seeley informed CN of her childcare issues and requested to be relieved on a compassionate basis, CN didn’t respond. The railway only told her it needed her answer by June 30, 2005 and that it had accommodated her need for more time to make child care arrangements. The railway also emphasized to Seeley that she had an “obligation to CN to manage these personal obligations in such a way that you are also able to fulfill your employment and collective agreement obligations.”
“In my view, CN’s choice of language in its letter and its failure to respond to Ms. Seeley’s letters and telephone call and her request for consideration under the collective agreement on the basis of childcare, is indicative of CN’s unwavering view that childcare was not a part of what was captured by the act’s prohibition against discrimination in the workplace on the basis of family status,” said the court.
The court also noted the choice of Seeley and her husband to live outside of Jasper had not been an issue previously. It found Seeley had inquired about childcare options nearby but CN didn’t provide any information regarding childcare options in Vancouver. Though Seeley didn’t inquire into those options, it was CN who had the information and should have shared it when Seeley informed it of her difficulties, said the court.
“CN, by its failure to respond to Ms. Seeley, denied her the opportunity to realistically explore and consider options for childcare in responding to the shortage or accessing accommodation if available under CN policy or the collective agreement,” said the court.
The court found the tribunal’s decision that CN discriminated against Seeley based on her family status – namely, her childcare obligations – was reasonable. The tribunal was also aware of Seeley’s specific parental obligations and the discrimination under family status wasn’t related to “general undefined family responsibilities,” said the court.
Though Seeley didn’t take steps to inform herself of the situation in Vancouver, CN had the information and its failure to engage discussions and respond to her requests was a failure to meet its duty to accommodate, said the court. In addition, Seeley requested consideration under the collective agreement for exemption for a satisfactory reason. CN didn’t respond to this request either.
The court agreed with the tribunal’s application of the three-part test for whether discrimination was allowed: CN met the first part in that it had a legitimate purpose for calling up employees to meet the shortage; and the second part, in that the standard was adopted in good faith. However, CN failed the third part of the test in that it couldn’t prove the Seeley couldn’t be accommodated without undue hardship or being able to accomplish its purpose.
The court upheld the tribunal’s finding that parental childcare obligations fall within family status and
CN discriminated against Seeley based upon that status. The awards were also upheld and CN’s appeal was dismissed.
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