4-part test should provide guidance for employers
A recent decision by the Federal Court of Appeal has clarified some of the grey areas when it comes to family status accommodation.
The case involved Fiona Ann Johnstone, an employee at the Canada Border Services Agency (CBSA). Prior to returning to work from her first maternity leave, she asked for an accommodation to her work schedule at Toronto Pearson International Airport. Instead of variable shifts that met the hourly requirement to be considered full-time, she sought a fixed work schedule on a full-time basis.
While the CBSA had accommodated some employees who had medical issues or religious beliefs with static shifts, it refused to do the same for workers with childcare obligations on the ground it had no legal duty to do so. And while it did allow employees with childcare needs to have fixed schedules, they had fewer hours and were considered part-time.
Johnstone filed a complaint with the Canadian Human Rights Commission in 2004 alleging discrimination on the basis of family status. The matter wound its way through the legal system over the years, with the most recent decision by the Federal Court of Appeal issued in May. The conclusion?
“There is no basis for the assertion that requiring accommodation for childcare obligations overshoots the purpose of including family status as a prohibited ground of discrimination. Indeed, without reasonable accommodation for parents’ childcare obligations, many parents will be impeded from fully participating in the workforce so as to make for themselves the lives they are able and wish to have,” said Justice Robert Mainville.
However, human rights legislation should not be “trivialized” by extending protection to personal choices such as kids participating in dance classes or sports tournaments, he said.
“The childcare obligations that are contemplated under family status should be those that have immutable or constructively immutable characteristics, such as those that form an integral component of the legal relationship between a parent and a child.”
As a result, said Mainville, an individual advancing such a claim must show:
• a child is under his care and supervision
• the childcare obligation engages his legal responsibility for that child, as opposed to personal choice
• he has made reasonable efforts to meet childcare obligations through reasonable alternative solutions and no such alternative solution is reasonably accessible
• the impugned workplace rule interferes with the fulfillment of the childcare obligation in a way that is more than trivial or insubstantial.
The Federal Court of Appeal provides some very clear guidelines, said Lisa Addario, legal counsel to the Public Service Alliance of Canada (PSAC) in Ottawa.
“The courts have made it clear that parental obligations flow from family status as a prohibited ground of discrimination. And if workers have made reasonable efforts to obtain childcare for their legal obligations and haven’t been able to do so, they are entitled to accommodation from their employers to the point of undue hardship.”
The case is really helpful to people who practise in this area, said Stephen Torscher, an associate at law firm Miller Thomson in Calgary.
“There’s now a pretty clear four-step test about how we’re going to apply this new formulation of the protection for family status and some more clarity about what family status obligations, childcare obligations are going to be protected.”
But the onus is on parents to show they’ve tried to find alternative solutions, he said.
“That, along with the clarification from the courts about what kind of family obligations are going to be protected, can give employers at least a little bit of comfort,” said Torscher. “It’s going to be incumbent on employers to have that dialogue with employees and figure out the extent of what kind of accommodations might be required and what steps the employees have themselves already taken to meet those obligations.”
While this decision may scare employers — in that every conceivable parental or familial obligation is suddenly to be protected and served by an employer — the court has set restrictions, said David Law, a partner at law firm Gowlings in Ottawa.
“They limit it to basically the feeding of, the physical security of, the monitoring of attendance to family members that you’re legally responsible for. Which I think, for employers who are worried about this, is fairly helpful language in that it identifies the range of things that we have to be concerned about if we are HR professionals or employers trying to accommodate.”
From childcare to elder care?
While Johnstone provides insights into family status obligations for childcare, it might also have implications for elder care. It’s probably just a matter of time before that argument bubbles up through the courts, said Torscher.
“Someone’s going to claim that they’ve got an obligation to take care of a parent or a grandparent, and their workplace rules and requirements are running in conflict with that obligation.”
The Federal Court of Appeal actually cites an elder care case “to recognize that family status incorporates parental obligations such as childcare,” said Addario, who also served as co-counsel to Johnstone at the Canadian Human Rights Tribunal.
The court also recognized “there are statutory obligations between an adult and their elderly parent,” she said, and it quoted a section of the Criminal Code that “speaks to the duty to provide the necessaries to not only a child but also to a spouse or an elderly person,” said Addario.
“The facts, as is the case with childcare obligations… will determine how the law evolves, but certainly the Federal Court of Appeal provided a positive context for consideration of elder care obligations.”
But the case doesn’t quite clarify the parental care issue, said Law.
“What I don’t know is: Will the courts talk about legal obligations? Will it limit elder care accommodation because the obligations we have to our parents are different than those for our children? It might, and so that’s to be tested.”
It’s a very interesting aspect of the case that is not yet clear, he said.
“The question will come down to whether the courts rule that we have a legal obligation to take care of our parents.”
That actually might be the weakness of the ruling, said Law.
“We have this gigantic, societal problem that this ruling, in effect, might effectively exclude from accommodation. That tells me that we will hear about it again and I expect that employers will make that argument about the elder care issue where, in fact, elder care has been accommodated in some past cases.”