In an update last October (Accommodating Family Status – Needs vs. Preferences) we advised you that the Ontario Human Rights Tribunal established a new test for an employer’s duty to accommodate on the basis of family status (i.e., must accommodate an employee’s genuine needs but not mere preferences). All employers, but especially federally regulated employers should take note that the Federal Court recently outlined an even more liberal and broad interpretation of the duty to accommodate on the basis of family status. The Federal Court confirmed in the decision of Attorney General of Canada v. Fiona Anna Johnstone and Canadian Human Rights Commission, 2013 FC 113, that parental childcare obligations fall within the scope of family status. In doing so, the court confirmed the central question as “whether or not the employment rule in question interfered with an employee’s ability to fulfill substantial parental obligations in a realistic way”. Significantly, the court rejected the line of cases (Health Sciences Assoc. of B.C. v. Campbell River and North Island Transition Society) that held there must be a “serious interference” with a substantial family duty (including parental or elder care) for the employee to prove discrimination on basis of family status. As such, this decision opens the door to requiring accommodation of employee lifestyle choices. As a result of the Johnstone decision, employers should understand that while there is still some conflicting law on the applicable standard for accommodating family status, the law is clear that requests for accommodation on the basis of family status must be treated seriously.
After the birth of her first child, Ms. Johnstone, a Canada Border Services Agency (CBSA) officer who worked rotating shifts at Pearson International Airport in Toronto, requested accommodation on the basis of childcare responsibilities. Specifically, Ms. Johnstone had requested she be entitled to work three static 13-hour shifts a week to facilitate childcare arrangements while still enabling her to work “full-time” for the purpose of qualifying for pension and other benefits. The CBSA denied her request, offering her the option to work static part-time shifts. Ms. Johnstone commenced an application to the Canadian Human Rights Tribunal after she was forced to reduce her status to part-time, notwithstanding that other employees had been accommodated (on the basis of disability or religion) with static full-time shifts.
The Tribunal’s Decision
The Tribunal found that the CBSA had discriminated against Ms. Johnstone on the basis of family status by failing to accommodate her childcare obligations. In doing so, the Tribunal acknowledged that seemingly ordinary childcare obligations could fall within the ambit of protections provided by the Canadian Human Rights Act. The Tribunal went on to conclude that the CBSA had failed to accommodate Ms. Johnstone’s childcare responsibilities, awarding $15,000 in general damages and $20,000 for special compensation pursuant to section 53(3) of the Act.
The Federal Court’s Review
Upon review, the Federal Court upheld the Tribunal’s conclusion that childcare obligations fall within the scope of the protected ground and clarified that a childcare obligation “must be one of substance” and that “the complainant must have tried to reconcile family obligations with work obligations” in order to make out a successful claim for discrimination. The Federal Court went on to articulate the primary question in responding to allegations of discrimination on the basis of family status as:
…whether the employment rule interferes with the employee’s ability to fulfill her substantial parental obligations in any realistic way.
Significantly, the court noted that no higher standard would apply to family status claims (i.e., no requirement for the employee to prove there was a “serious interference” with a substantial family duty).
The Federal Court decision seems to have been influenced by several specific factual findings. For example, the Federal Court was very critical of the CBSA’s rigid application of an unwritten policy prohibiting full-time static shift accommodation for employees with childcare obligations in the face of evidence that such accommodation was given to employees requiring accommodation on the basis of disability or religion. The Federal Court also gave no weight to the CBSA’s concern that if Ms. Johnstone’s request was granted, the CBSA would be faced with an overwhelming volume of requests from other parents looking for more flexible scheduling. Further, the Federal Court also took issue with the fact that CBSA officials had failed to provide a reasonable safety or health related reason for its self-imposed 10-hour shift maximums, which it had argued prevented compliance with Ms. Johnstone’s request.
Of concern to employers is that the Federal Court rejected arguments advanced by the CBSA that Ms. Johnstone’s requests for accommodation and scheduling concerns arose principally from a “series of choices she and her husband jointly made”. Ms. Johnstone’s husband was also an employee of CBSA and CBSA officials argued that the request for a change in her shifts was essentially a lifestyle choice. In particular, the availability of childcare (or lack thereof) for Ms. Johnstone that resulted in her requesting the modified shift schedule depended on a series of choices that were ultimately within the exclusive control of Ms. Johnstone. These choices included the choice of where to live, the size of the home purchased by the employee, the desire to have the father continue to work rotating shifts, the parents’ preference to have their children cared for primarily by family members and preference not to pay for childcare and finally, Ms. Johnstone’s preference to work only three days a week. For example, the court declined to give weight to the CBSA’s argument that the applicant had voluntarily relocated from a home six kilometres away from her workplace to a smaller town over 60 kilometres away, notwithstanding that her decision to relocate would have significantly impacted her ability to find suitable alternative daycare.
What this Means for Employers
There is still some uncertainty in this area of the law, but the trend is to reject the earlier lines of cases that required a higher threshold for family status claims (i.e., serious interference with a substantial parental duty). As a result, Canadian employers should exercise caution when faced with a request for accommodation on the basis of family status. While based on recent jurisprudence, employers within the jurisdiction of the Ontario Human Rights Code may still be entitled to refuse accommodation based merely on an applicant’s preferences (as opposed to needs), employers governed by the federal Canadian Human Rights Act will be required to comply with the employee friendly standard articulated in Johnstone.
Best Practices for Employers Dealing with Accommodation Requests
Employers faced with requests for accommodation on the basis of family status should be mindful of the following best practices:
Don’t dismiss requests out of hand. Upon learning of an employee’s request to satisfy his/her family responsibilities, employers should engage in an immediate dialogue to determine the scope of the employee’s needs and to design an accommodation strategy, if necessary.
Document the accommodation process. Employers should carefully document inquiries to determine whether the accommodations are reasonably related to care-giving obligations (i.e., modified hours or shifts, absences for medical appointments for family members). While Johnstone confirms that federally regulated employers are likely required to accommodate beyond employee needs and into the realm of preferences, employers should still document requests to employees to confirm, for example, what childcare options the employee has investigated prior to seeking accommodation. These inquiries may serve as a practical aid in developing an accommodation strategy that meets the employee’s needs and objectives without causing undue disruption in the workplace.
Policies must be reasonable and well documented. In light of the findings made by the Tribunal in Johnstone, it is imperative that employers’ policies be well-documented and made available to employees requesting accommodation. Employers should also consider the flexibility of their attendance and scheduling policies to determine whether employees with care-giving or other family responsibilities are able to work effectively from home, during alternative or non-traditional hours or on alternate or static shifts where circumstances permit.
Gather evidence of undue hardship. Assertions about undue hardship premised on the employer’s suspicion that it would face an overwhelming number of requests if it accommodated an employee’s childcare responsibilities by offering full-time static shifts, in the absence of any supporting evidence, were not sufficient in Johnstone to make out the CBSA’s claim of undue hardship, notwithstanding the complex scheduling issues it faced as a 24-hour facility. It is important that employers gather objective evidence before adopting blanket positions or policies when faced with accommodation requests.