May 14, 2014
The Federal Court of Appeal has provided further clarification of what it means to discriminate on the basis of “family status”.
In a previous In A Flash article, we discussed the decision in Johnstone, in which the Canadian Human Rights Tribunal (the “Tribunal”) concluded that Ms. Johnstone, a border services officer, was discriminated on the basis of family status when her employer refused to accommodate her childcare needs by placing her on a static shift. The Tribunal decision relating to family status discrimination has been now been confirmed on two levels of appeal.
The Federal Court of Appeal agreed that “family status” extends to childcare obligations, but cautioned that human rights legislation should not be trivialized by extending protection to personal family choices, such as children’s participation in dance classes, sports events like hockey tournaments, family activities such as family trips and other similar voluntary activities. Rather, to trigger human rights protection, childcare obligations protected by family status must have an “immutable or constructively immutable characteristic,” such as those that form “an integral component of the legal relationship between a parent and a child.”
In order to determine those situations that trigger a duty to accommodate, the Court helpfully outlined four prerequisites for finding discrimination on the basis of family status:
In discussing these criteria, the Court emphasized that “family status” protection only extends to those childcare obligations that a parent cannot neglect without engaging his or her legal liability. For example, a parent cannot leave a young child without supervision at home in order to pursue his or her work, since this would constitute a form of neglect, which in extreme examples could engage the Criminal Code. Further, an employee is required to seek and accept reasonable alternatives to meet their legal childcare obligations before seeking workplace accommodation.
Applying the above criteria, the Federal Court of Appeal affirmed that Ms. Johnstone was subject to prima facie discrimination. The Court made particular note of the fact that she made “serious but unsuccessful efforts” to secure reasonable alternative childcare arrangements, that she had investigated numerous regulated and un-regulated childcare providers, including extended family members, and that her and her husband’s rotating shifts and unpredictable overtime prevented both parents from providing childcare on a reliable basis, making it exceptionally difficult to find third party childcare.
In Seeley, a companion decision to Johnstone, the Court applied the same criteria to find that an employee living in Brule, Alberta was discriminated against when she was required to move to Vancouver to cover a shortage, in accordance with the recall provisions of her collective agreement. Because Ms. Seeley’s employer never provided her with the information necessary to explore whether childcare options were available or feasible in Vancouver, the Court found that bringing her children to Vancouver became an unrealistic option, triggering a prima facie case of discrimination.
The recent Johnstone decision provides some helpful guidance, but given that the obligation is only triggered where the employee has legal obligations with respect to the individual requiring care, this case raises interesting questions about what to do with employees who are not parents but are still de facto caregivers, or where the individual requiring care is the employee’s sibling, spouse or parent, as opposed to a child.
If you have any questions about family status discrimination, or any other questions relating to workplace law, please do not hesitate to contact a Mathews Dinsdale lawyer.
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