eCaseNote 2014 No. 04

A Changing Landscape: An Employer’s Duty to Accommodate Employees’ Childcare Obligations

Johnstone v. Canada (Border Services Agency), 2014 FCA 110

“ … without reasonable accommodation for parents’ childcare obligations, many parents will be impeded from fully participating in the work force so as to make for themselves the lives they are able and wish to have. The broad and liberal interpretation of human rights legislation requires an approach that favours a broad participation and inclusion in employment opportunities for those parents who wish or need to pursue such opportunities” (para 66).

The quote above, from this recent Federal Court of Appeal decision, emphasizes the importance of accommodating employees’ workplace and childcare obligations so as to allow them equal and meaningful participation in the work force. A look at the facts and decision of this case can provide valuable guidance for employers. Facts

Ms. Johnstone and her husband both worked variable shift schedules for the CBSA. Ms. Johnstone began working for the CBSA in 1998, taking maternity leave for her two children from 2003 to 2004 and 2004 to 2005. During her first maternity leave, Ms. Johnstone asked the CBSA for an accommodation to her work schedule. The CBSA refused to accommodate employee work schedules with respect to childcare obligations, feeling that they had no legal duty to do so, although they had accommodated employees for medical issues and religious beliefs in the past. The CBSA would only accommodate Ms. Johnstone’s request for a fixed schedule by treating her as a part-time employee.

Ms. Johnstone filed a complaint with the Canadian Human Rights Commission in April 2004, claiming discrimination on the basis of family status. The complaint was initially dismissed by the Commission but was remitted back for reconsideration by the Federal Court of Appeal. The complaint then proceeded through the Canadian Human Rights Tribunal and Federal Court, ultimately being heard by the Federal Court of Appeal.

The Federal Court of Appeal Decision

The Court determined that Ms. Johnstone had clearly established a case of discrimination on the ground of family status resulting from childcare obligations. As a mother of two young children she was legally required to provide them adult supervision, and she had made serious efforts to obtain alternative childcare arrangements including contacting childcare facilities near home and work, asking family members, and considering flexible childcare arrangements. Additionally, Ms. Johnstone’s regular work schedule interfered in a manner that was more than trivial or insubstantial with the fulfillment of her childcare obligations.

The Test

The Court stated that there should be no hierarchy of human rights and that the test for the various prohibited grounds of discrimination should be substantially the same. Therefore, the Court rejected the argument that Ms. Johnstone would have to demonstrate a change of a condition of employment resulting in a serious interference with a substantial parental duty. Instead, the Court determined that to demonstrate a case of discrimination on the prohibited ground of family status resulting from childcare obligations, the complainant must show:

  1. That the child is under his or her care and supervision;
  2. That the childcare obligation at issue engages the individual’s legal responsibility for that child, as opposed to a personal choice;
  3. That he or she has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible; and
  4. That the workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation.

What This Means for Employers

In accordance with this decision, it appears that employers have a duty to accommodate employees with conflicting workplace and childcare obligations. However, there are a few limitations. First, the child must not be old enough that they can reasonably be expected to care for themselves. Second, discrimination will not pertain to personal family choices, such as children’s participation in extracurricular activities and family trips. Third, the employer only has a legal duty to accommodate childcare obligations when the employee has been unsuccessful in seeking reasonable alternative childcare arrangements. Additionally, even if discrimination is proven, an employer only has a duty to accommodate up to the point of undue hardship. The CBSA now has the option to seek leave to the Supreme Court of Canada.

The comments contained in this eCaseNote provide general information only and should not be construed as legal advice or opinion. For more information or specific advice on matters of interest, please call our offices at (709) 579-2081.