Child Care – Employers Must Accommodate!!

The Federal Court of Canada has upheld the Canadian Human Rights Tribunal’s decision that the Canada Border Services Agency failed to accommodate Fiona Johnstone’s family status as required in accordance with the Canadian Human Rights Act, and therefore discriminated against her in the workplace.

Summary

The Employee, Fiona Johnstone (the “Employee”), worked for Canada Border Services Agency (the “Employer”) as a full time Customs Supervisor. A result of working full time was that the Employee was required to work irregular rotating shift.

In 2002 and 2004, the Employee went on maternity leave. Both before and after returning from each maternity leave, the Employee requested that the Employer provide her with static shifts to accommodate her child care responsibilities. In response to the Employee’s requests, the Employer declined the requests and referred to an unwritten policy that anyone seeking accommodation in order to care for their children may be accommodated by being given static shifts, but they must work part-time to do so. However, the Employee did not want to be changed to part-time status otherwise her pension entitlements, promotional opportunities and income would be adversely affected. As a result, the Employee brought a Human Rights Complaint under the Canadian Human Rights Act claiming that the Employer discriminated against her on the basis of family status.

After hearing the evidence from both the Employee and the Employer, the Canadian Human Rights Tribunal determined that the Employee had made out a successful case of prima facie discrimination on the basis of family status in accordance with the Canadian Human Rights Act.

Upon appeal by the Employer to the Federal Court, the Canadian Human Rights Tribunal’s decision was upheld.

Impact of Decision on Employers

Employers must ensure that they accommodate an employee’s request with respect to any of the enumerated grounds protected under human rights legislation. As demonstrated in the case above, one of these enumerated grounds is family status, which generally includes an employee’s children, spouses and immediate family. In the event that an employee requests accommodation with respect to any of these individuals, or with respect to any other enumerated ground under human rights legislation, an employer must determine whether there is a duty to accommodate the request and whether they are able to do so short of undue hardship. Failing to address these issues may result in a human rights complaint or application, and possible payment of damages to the employee. To help assess such situations, and what is considered undue hardship, employers should consult with experienced Employment Law counsel.

Impact of decision on Employees

Employees should be aware of the above decision as it demonstrates an employers duty to accommodate an employee with respect to the enumerated grounds under human rights legislation, and that such duty includes accommodating an employee at the workplace in relation to their child care responsibilities, up to the point of undue hardship. In the event that an employee requests accommodation from their employer with respect to their family status or any other enumerated ground and the employer fails to provide accommodation, the employee should consult with experienced Employment Law counsel to determine whether the employer has accommodated up to the point of undue hardship.

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