Be Wary of Accommodating Employees on the Basis of One Prohibited Ground and Not Others

February 13, 2013

The Federal
Court recently released its decision in Johnstone v. Canada (Border
Services)
, an application for judicial review of a Canadian Human Rights
Tribunal (“Tribunal”) decision allowing Ms. Johnstone’s human rights complaint
against her employer on the basis of her family status and in particular, her
parental childcare obligations.

Ms.
Johnstone is a mother of two and a border services officer at the Canadian
Border Services Agency (“Agency”).  As a
full-time employee she worked rotating shifts of at least 37.5 hours per week as
did all full-time Agency employees.  Ms.
Johnstone’s husband worked for the Agency as well but worked longer hours as a
supervisor.  Their work schedules only
overlapped 60% of the time and as a result, he could not share the family
childcare duties on a reliable basis.

Following
her return to work from her first maternity leave, Ms. Johnstone requested to
work fixed day shifts to allow her to arrange childcare for her young child.  Specifically, she requested to work full-time
in fixed shifts of 13 hours over three days. 
The Agency’s policy restricted full-time employees from working fixed
day shifts and only made these shifts available to part-time employees.  Ms. Johnstone wished to maintain her
full-time status in order to preserve promotional opportunities, her pension,
and other benefits only available to full-time employees.

Citing its
unwritten policy, the Agency denied her request and offered her part-time work
on a fixed schedule instead.  The Agency
offered Ms. Johnstone a maximum of 10 hours a day for three days plus a further
four hour shift on a fourth day for a total of 34 hours a week.  The Agency confirmed that the shifts would be
on the same days of the week but reiterated that in order to get fixed shifts
the maximum hours of work allowed was 34 hours a week.  Ms. Johnstone accepted the three 10-hour days
but not the additional four hours on the fourth day because it would not enable
her to achieve the full-time status she wanted and the childcare expense for
the fourth half-day negated the extra four hours of wages.

Ms.
Johnstone asked if she could remain on full-time status and characterize the
hours not worked as leave without pay so that her income would still be
pensionable.  This request was
denied.  Following the birth of her
second child, she renewed her request to work full-time in fixed shifts of 13
hours over three days.  The Agency again
denied her request.

At this
point, Ms. Johnstone filed her complaint with the Tribunal.  An investigator was appointed and found that
the Agency differentiated between employees seeking relief from rotating shift
schedules for medical reasons and those seeking the same relief for reasons of
childcare.  The inspector found the
Agency’s justification for the policy on the basis of operational concerns to
be unpersuasive and recommended that the Canadian Human Rights Commission
(“Commission”) refer the complaint to the Tribunal.

The
Commission, tasked with screening complaints, found that the Agency
accommodated Ms. Johnstone and that its policy did not constitute a “serious
interference” with Ms. Johnstone’s duty as a parent.  Ms. Johnstone applied for judicial review of
the Commission’s decision in the Federal Court and was successful.  Her case subsequently proceeded to the
Tribunal.

The
Tribunal held that the Agency had discriminated against Ms. Johnstone on the
basis of family status and that the Agency had not accommodated her to the
point of undue hardship, as required by the Canadian Human Rights Act
(“Act”).  Of particular relevance was
evidence that the Agency had accommodated employees seeking accommodation for
medical or religious reasons, and although the Agency had departed from its
strict policy in some cases, it had been uncompromising in Ms. Johnstone’s
case.  The Tribunal awarded that Ms. Johnstone
be compensated: (i) for her lost wages and benefits, including overtime she would
have received and pension contributions as if she had been working full-time;
(ii) $15,000 for general damages for pain and suffering; and (iii) $20,000 for
special compensation.

On appeal
to the Federal Court, the Agency argued that: (i) the term “family status” in
the Act did not include parental childcare obligations; (ii) the Tribunal’s
legal test for finding prima facie discrimination on the basis of family
status was incorrect; and (iii) the Tribunal erred in its remedial award.  The Federal Court denied the first two grounds
of appeal and the majority of the third with the exception of the Tribunal’s
award of monetary compensation for a period of time Ms. Johnstone decided to
take an unpaid leave to accompany her husband to Ottawa.

This case is
significant to federally regulated employers because the Federal Court again rejected
the “serious interference” test as an appropriate test for discrimination on
the ground of family status because “it creates a higher threshold to establish
a prima facie case on the ground of
family status as compared to other grounds.” 
As may be recalled, the “serious interference” test emanated from a B.C.
Court of Appeal case (Campbell River)
involving a mother’s care for a child with special needs which included a psychiatric
disability and behavioural problems.  Instead,
the Federal Court stated that “the question to be asked is whether the
employment rule interferes with an employee’s ability to fulfill her
substantial parental obligations in any realistic way.”

As a
result, one of the challenges for adjudicators lies in determining what
familial obligations are “substantial”.  The obligation to provide the basic
necessities of life such as food, shelter, healthcare and safety would likely
be included, but what about the need to spend time with children or enroll them
in activities to assist in their development? 
There are no easy answers, but the reality is that most Canadian parents
must work in order to be able to afford to provide the same necessities for
their children.  Further complicating the
analysis is that the availability of childcare options varies from one place to
another, and as the Agency argued in this case, this is often the result of
choices made by parents in terms of where to live, what size of home to have,
whether to continue working and/or what type of childcare is preferred.  That being said, the Federal Court did state
that the childcare obligations protected on the basis of family status “must be
one of substance and the complainant must have tried to reconcile family
obligations with work obligations.”

Therefore,
when faced with a request for accommodation from an employee on the basis of
family status, employers ought to inquire into the individual circumstances of
the employee and determine what efforts the employee has made to reconcile his
or her family obligations with work obligations.  Then it will be important to re-evaluate
justifications for rigid workplace rules or policies when considering requests
for accommodation and to ensure that the organization is not differentiating
between requests based on one prohibited ground versus others in an arbitrary
or inappropriate way.

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