In the face of competing views regarding the proper approach in establishing discrimination on the basis of family status, employers are faced with uncertainty in relation to their obligations. These murky waters are likely to continue for some time until the issue makes it way through appeals.
In the decision of the Federal Court in Attorney General of Canada v. Johnstone[1], Ms. Johnstone alleged that her employer had engaged in a discriminatory employment practice in relation to a request for fixed shifts to address childcare demands. The Canadian Human Rights Tribunal agreed with Ms. Johnstone. On application for judicial review, the Federal Court upheld the finding of the Tribunal that parental childcare obligations come within the scope and meaning of ‘family status’ in the Canadian Human Rights Code. The Court upheld the decision of the Tribunal that the employer had discriminated against Ms. Johnstone on the basis of family status. The Federal Court determined that the Tribunal erred in part regarding the compensation and policy awards and referred that matter back to the Tribunal.
Will this decision open the floodgates to requests for accommodation based on childcare obligations? The Federal Court confirmed that childcare obligations must be of substance and the complainant must have tried to reconcile the competing family and work obligations. Of note, the Court addressed that the employment rule, policy or condition must interfere with the employee’s ability to meet a substantial parental obligation in “any realistic way.” The Federal Court adopted the threshold seen in the Supreme Court of Canada in Amselem,[2] where the Court ruled that religious freedom is interfered with where the person demonstrates that he or she has a sincere religious belief interfered with in a non-trivial or not insubstantial manner. This is equated to “a substantial parental duty or obligation”. This language provides hope that some balance and common sense will be brought to bear on the issue.
The application of the employer’s unwritten and blanket policy was criticized. The treatment of those seeking accommodation for childcare was contrasted with the individualized assessment provided for those employees seeking medical or religious accommodations with the employer.
Given the ongoing development of family status within the case law, employers need to carefully review current policies and consider the way in which they handle requests relating to family status. A focus on core principles of accommodation, including consideration of the unique circumstances of each case and the good faith obligations of both the employer and employee, will assist in addressing such requests and defending complaints. While most of these requests relate to childcare obligations, other dependency relationships exist in families that need to be kept in mind in developing and implementing policies, such as eldercare obligations.
