Family status: The evolving duty

Federal Court decision on accommodating child care raises accommodation bar

However, as the workforce changes, so too has the scope of this duty. In particular, child and elder care have created a new series of challenges to employers and employees. Not surprisingly, the interpretation of the obligation to accommodate is changing the face of workplace accommodation.

In a recent case dealing squarely with the conflict between the rights of an employer to expect its employees to attend work and arrange their child care responsibilities, and the employee’s right to accommodation, the Federal Court affirmed a 2010 decision of the Canadian Human Rights Tribunal ordering an employer to accommodate an employee’s child care responsibilities.

Fiona Johnstone was a full-time employee of the Canadian Border Services Agency (CBSA). Her position required that she work rotating shifts. Upon her return from maternity leave, Johnstone could not secure child care that would allow her to work a rotating shift schedule. Her husband worked rotating shifts for CBSA. Johnstone requested accommodation from CBSA in the form of three 13-hour fixed shifts per week. CBSA denied the request and offered her part-time employment consisting of 34 hours per week over four days.

Johnstone filed a complaint with the Canadian Human Rights Commission pursuant to the Canadian Human Rights Act, which prohibits adverse differentiation and deprivation of “any employment opportunities” on the basis of a prohibited ground of discrimination, including family status.

Johnstone claimed she was deprived of the opportunity to work full-time by an unwritten CBSA policy of refusing scheduling requests from employees on the basis of facilitating child care.

However, there has been — and some would say continues to be — differing jurisdictional approaches as to the nature of the duty and the obligation(s) in the workplace as they relate to family status.

In Campbell River & North Island Transition Society v. H.S.A.B.C., the British Columbia Court of Appeal held although employers have a duty to consider a work schedule that accommodates the family needs of an employee, not every request for accommodation would invoke the duty to accommodate.

In the Johnstone case, the tribunal and the Federal Court were asked to consider whether her request based on her child care responsibilities triggered the employer’s statutory duty to accommodate.

In affirming the tribunal’s decision, which concluded the CBSA had discriminated against Johnstone, the court rejected the argument that to find discrimination on the ground of family status, a complainant had a higher threshold than under other prohibited grounds.

The court specifically criticized the decision in Campbell River as treating family status differently from other prohibited grounds of discrimination. Under the act, an employee need only make out a prima facie case of discrimination. The refusal by CBSA to accommodate Johnstone’s needs was sufficient to make out the prima facie case of discrimination.

While CBSA did invoke the defence that the practice was the result of a bona fide occupational requirement (BFOR), the tribunal found it had not undertaken a detailed look at its BFORs. Coupled with the fact that the CBSA had a policy of accommodating requests based on medical and religious grounds, it determined the requested scheduling accommodation was feasible.

The court went on to support the premise that parental child care responsibilities are included in the enumerated ground of family status in the act, specifically endorsing the tribunal’s conclusion that “the freedom to choose to become a parent is so vital that it should not be constrained by the fear of discriminatory consequences. For the employer, this means assessing situations such as Ms. Johnstone’s on an individual basis and working together with her to create a workable solution that balances her parental obligations with her work opportunities, short of undue hardship.”

And while the court reduced the damages, it upheld the tribunal’s findings and interpretation. In addition to compensating Johnstone for lost wages and benefits, the court awarded her $15,000 for pain and suffering and $20,000 in “special compensation” because the CBSA engaged in the discriminatory practice willfully or recklessly.

Implications for employers

Despite what might be considered a differing approach depending on jurisdiction, the Johnstone decision specifically states that the interpretation of any human rights legislation should be done in a broad and purposive way that does not restrict the employee’s right to be accommodated for family status.

There are issues, of course, with respect to such a broad interpretation. It does not reflect the practical reality of the workplace, where it is very difficult to demonstrate undue hardship or a BFOR relative to any request for accommodation on the basis of family status.

It would seem that finding a middle ground, one which takes into account both the strict requirement to accommodate and the challenges of the modern workplace, makes sense. This standard, which seems to be the direction arbitrators are moving towards, strikes a balance between the employer’s duty and an employee’s obligation to make efforts to balance their work and parental responsibilities before the request for accommodation becomes “automatic.”

Practical tips

There is no putting the genie back in the bottle. Employee requests for family status accommodation will become more regular and, in many cases, more complicated. As a result, a few simple tips may help in navigating through the law while trying to run the workplace.

Review your policies: Develop clarity on occupational requirements and make sure employees understand them. Review attendance policies to ensure they are both flexible and reflect the changing needs of the workforce.

Treat each request individually: Simply denying a request for accommodation, without a review of the circumstances, is a recipe for disaster. Not every request will be reasonable. Implement procedures that will give each request measured consideration. Showing procedural fairness and consideration to an employee will weigh in the employer’s favour.

Understand what the term “undue hardship” means to your business: Courts and tribunals require specific and compelling evidence of what constitutes undue hardship. Simply asserting that granting the employee’s request for accommodation is a hardship is not enough. Understand the impact on the organization’s ability to maintain its operations efficiently and potential costs.

Don’t be afraid to ask: The duty to accommodate is not a one way street. Employees are also responsible for participating in their own accommodation. Employers must understand the specifics of the requested accommodation. Inquiring to determine if the request is reasonable is not only smart, but a necessary part of the accommodation process. Never underestimate the value of documenting the accommodation process.

For more information see:

Campbell River & North Island Transition Society v. H.S.A.B.C., 2004 CarswellBC 1012 (B.C. C.A.).
Johnstone v. Canada (Border Services Agency), 2013 CarswellNat 152 (F.C.).

Lorenzo Lisi is a partner practising employment and labour law with Aird & Berlis LLP in Toronto. Jesse Rosensweet is an articling student with Aird & Berlis in Toronto. Aird & Berlis can be reached at (416) 863-1500 or by visiting

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