Refusal to accommodate child care crossed the line: Tribunal

Border agency believed having children was a choice that didn’t require accommodation; employee gets $35,000 plus lost pay and benefits

Family status: Choice or protected ground?

Family status is a hot-button issue in human rights circles, particularly when it comes to employment. Work-life balance is high on the list of priorities for employees and employers have to keep this in mind when they recruit talent. It can also mean trouble if they don’t accommodate certain personal demands employees face, because family status is protected under human rights legislation.

The Canadian Border Services Agency found out it may not matter if an employee’s family circumstances is by choice or not when it comes to accommodation of something like child care demands.

A Canadian government agency discriminated against an employee when it didn’t investigate the possibilities of changing her shifts to accommodate her child care demands, the Canadian Human Rights Tribunal has ruled.

Fiona Ann Johnstone was a border services officer for the Canada Border Services Agency (CBSA) passenger operations at Pearson International Airport in Toronto. She was considered a good employee, receiving very good reports and praise for her job performance. Johnstone was married to another border services officer and, as was the case for most officers, they worked a rotation of differing shifts.

CBSA had a pattern of rotating shifts in which employees worked through six different start times and different days of the week over a 56 day period. Officers received 15 days’ notice of each new shift schedule, though CBSA had the right under the collective agreement to change the schedule with five days’ notice. In addition to shift work, border officers were expected to work a certain amount of overtime, which was usually unpredictable.

Johnstone became pregnant in 2002 and, before her scheduled maternity leave in January 2003, she asked CBSA for full-time static shifts when she came back to accommodate her child-care needs. She wanted to work three 13-hour days per week so she could remain fulltime.

She indicated she could arrange child care with her family for those three days. Otherwise, child care was difficult to secure with the rotating shift work most border officers, including her husband, had to work as most daycare facilities operated from 7 a.m. to 6 p.m. Monday through Friday. A live-in nanny was also not an option because of the expense, so Johnstone reiterated her request when she returned to work in January 2004.

Unwritten policy of not accommodating child care needs

CBSA told Johnstone giving her such hours wasn’t possible as it had an unwritten policy that didn’t allow static shifts for the reason of child care responsibilities and any accommodation for child care had to be for part-time hours. The policy was based on its view that child care obligations were based on choices employees make for which the employer had no responsibility. The agency was also concerned that giving Johnstone this accommodation would open up a flood of similar requests. However, Johnstone pursued her request because she knew CBSA had allowed static shifts with full-time hours for certain employees for other reasons, such as religious requirements. However, she then requested three 12-hour days per week. Though this put her hours under the full-time requirement of 37.5 hours per week, she wanted to be as close to full-time as possible to lessen the financial impact on her pension and benefits.

CBSA said it didn’t want any employees working more than 10-hour days, so the best it could do was three 10-hour days plus another four hours on a fourth day. Starting times would vary, but they would be on the same days each week. In offering her this option, CBSA didn’t inquire as to her child care efforts and simply followed its unwritten policy.

Johnstone accepted this latest proposal, though she wasn’t happy with part-time hours. She knew CBSA had given four nine-hour static shifts each week to two other employees to give them full-time hours, but accepted the proposal because she could arrange child care on the days specified. Her pension and benefits were then pro-rated and she said she missed out on training and advancement opportunities because she was a part-time employee.

Johnstone had another child in December 2004 and when she returned from her maternity leave in December 2005, she once again requested full-time hours over three days. Once again, CBSA denied her request. Some time later, Johnstone’s husband accepted a training position in Ottawa and Johnstone went on a relocation of spouse leave for one year. Once that leave was up, she decided to go on an unpaid care and nurturing leave rather than go back to part-time work. Once her children reached school age, she intended to return to full-time work with CBSA.

Johnstone filed a human rights complaint, claiming CBSA discriminated her because of her family status. She pointed to her Jewish co-worker who was allowed to exchange his shifts for one year to accommodate his religious observances and other workers who were given alternative shift schedules for reasons specific to their circumstances. She also said there was no reason why CBSA should feel she couldn’t handle longer shifts when she was confident she could.

CBSA denied it discriminated against her based on the protected ground of family status, arguing the Canada Human Rights Code’s protection is based on an individual’s “absolute” status of being in a family relationship, not the normal responsibilities or activities associated with being a parent.

‘Arbitrary’ policy not applied consistently: Tribunal

The tribunal found CBSA’s unwritten policy on limiting accommodation for child care needs to part-time work was arbitrary. However, it also found CBSA broke their own policy “fairly often,” in accommodating several employees, but failed to give Johnstone any consideration for accommodation of her circumstances. The disadvantaged situation this put her in constituted a prima facie case of discrimination based on her family status, said the tribunal.

“CBSA engaged in a discriminatory practice by establishing an pursuing an unwritten policy communicated to and followed by management that affected Ms. Johnstone’s employment opportunities including, but not limited to, promotion, training, transfer and benefits on the prohibited ground of family status,” said the tribunal. “CBSA forced Ms. Johnstone to self-reduce to part-time status thereby adversely affecting her with respect to employment.”

The tribunal noted CBSA and its predecessors and been under the direction of the Canadian Human Rights Commission and the tribunal since 1993 to develop accommodation policies for family status after a complaint that year. However, CBSA considered Johnstone’s circumstance outside the scope of human rights protection, since it was based on a choice she made to have children.

The tribunal found had CBSA considered accommodation for Johnstone, it may have found it was possible. Another district in the Toronto area dealt with the inspection of mail coming into the country and had longer shifts available that fit with Johnstone’s request. There were also provisions under the scheduling system that allowed some employees, usually new ones, to work static days of the week and sometimes employees were allowed to work more than 10 hours a day due to “operational needs.”

The tribunal ruled that, in the wake of its finding of prima facie discrimination against Johnstone and its accommodation of other employees with similar static shift schedules, CBSA failed to prove there was a bona fide occupational requirement for not accommodating her. As a result it should have at least examined whether it could have accommodated her family responsibilities with full-time work, which it did not.

CBSA was ordered to stop its discriminatory practices against employees who requested accommodation based on child care responsibilities and to develop a plan to avoid similar discrimination in the future. It was also required to develop written policies for such a situation within six months.

CBSA was also ordered to pay Johnstone compensation for her wages and benefits lost as a result of going to part-time employment, including overtime and pension contributions she would have received as a full-time border services officer. The agency was also ordered to pay her $15,000 for injury to her person, confidence and professional reputation and $20,000 for its “wilful and reckless” conduct in denying it had a duty to accommodate Johnstone.

For more information see:

Johnstone v. Canada Border Services (Aug. 6, 2010), 2010 CHRT 20 (Can. Human Rights Trib.).

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The right to be a parent

The Canadian Human Rights Tribunal scolded CBSA for its position that having a child was a choice and not something employers needed to accommodate:

“The freedom to choose to become a parent is so vital that it should not be constrained by the fear of discriminatory consequences. As a society, Canada should recognize this fundamental freedom and support that choice wherever possible. 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.”

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