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Employers Must Accommodate Employees with Family Obligations, Federal Court Rules

In what could prove to be a landmark decision, the Federal Court recently upheld a Canadian Human Rights Tribunal decision which held that the Canada Border Services Agency (CBSA) discriminated against an employee on the basis of family status when she was denied her request for regular hours in order to make child care arrangements.

Fiona Johnstone had been working full-time as a border services officer on irregular rotating shifts. The constantly changing and unpredictable work hours made it impossible for Johnstone to arrange childcare. She twice requested full-time employment with fixed day shifts that would allow her to arrange childcare for her two young children and was denied both times. The only available fixed shifts offered by the CBSA were part-time. Johnstone, however, wished to maintain her full-time employment status in order to access opportunities for training and advancement, pension and benefits available for full-time employees.

In denying Johnstone’s request, the CBSA took the position that in order to meet its operational requirements at Pearson Airport, full-time employees were required to work rotating and variable shifts under an agreement established with the local union, titled the Variable Shift Scheduling Agreement (VSSA).

The CBSA did not believe that childcare or other family obligations fell within the enumerated ground of “family status” triggering a duty to accommodate. Instead, it took the position that the need for accommodation on the basis of family obligations was merely the result of choices that individuals make, rather than a legitimate need.

The Court determined that family status should not be limited to identifying one as a parent or a familial relation of another person, but rather includes the needs and obligations naturally flowing from that relationship.  The Court framed the test for establishing a prima facie case of family status discrimination as one of determining whether the employment rule/practice interferes with an employee’s ability to fulfill “substantial parental any realistic way”.

The Court noted that although the CBSA had refused to accommodate Johnstone’s family obligations, it had circumvented the VSSA in order to accommodate other employees for medical or religious reasons. It appears that this seemingly arbitrary line drawn in the sand by the CBSA may have been a factor in the Tribunal’s decision.

The CBSA was ordered to pay Johnstone the difference between her part-time and full-time wages and benefits for the entire period she was limited to working the reduced hours. Johnstone was also awarded $15,000 in general damages for pain and suffering and $20,000 in special damages for the CBSA’s willful engagement in a discriminatory practice. The CBSA has revised its policies to address requests such as the one made by Johnstone.

The Federal Court’s analysis is at odds with the approach of the British Columbia Court of Appeal in Campbell River and North Island Transition Society, a leading authority on family status accommodation.  This case held that there must be a serious interference with the parental/family duty before a prima facie case of family status discrimination could be made out.

As employers are likely to see a rise in requests to accommodate childcare arrangements and the care of older relatives in the future, it will be important for employers to give careful consideration to the impact of such requests on the workplace and the steps the employee has taken to try and resolve conflicts between family and workplace obligations to determine whether the family obligations can be accommodated short of undue hardship.

The lawyers at CCP can assist employers in the challenging area of human rights law by drafting/reviewing workplace policies, evaluating accommodation requests and litigating Human Rights complaints should it be necessary.

The CBSA has not come to a decision on whether or not to appeal the Federal Court ruling. CCP will post any updates as they occur.

Click here for the Federal Court decision.

Click here for the original Canadian Human Rights Tribunal decision.

Please Note: This blog has been prepared as an informational service for our clients and other interested parties. It is not intended to constitute legal advice, a complete statement of the law or opinion on any subject. Although we endeavour to ensure the accuracy of the content, no one should act upon the information provided without a thorough examination of the law after the facts of a specific situation are fully considered.



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