In Attorney General of Canada v Johnstone, 2014 FCA 110, the Federal Court of Appeal (“FCA”) established a new test for determining whether an employer has discriminated against an employee on the basis of “family status” under the Canadian Human Rights Act (“CHRA”).
In 1998, Ms. Johnstone became employed as a Canada Border Service Agency (“CBSA”) officer. She worked rotating shifts varying between days, evening and nights. After the birth of her first child, Ms. Johnstone asked to be placed on a fixed schedule to accommodate child care needs.
In the past, the CBSA had accommodated some employees with full-time fixed work schedules for medical and religious reasons, but not for reasons associated with family status. Instead, these employees were forced to accept part-time hours. Part-time employees had fewer employment benefits than full-time employees regarding pension entitlements and promotion opportunities.
Ms. Johnstone claimed that the CBSA had discriminated against her on the basis of “family status”, one of the prohibited grounds of discrimination under the CHRA. She was eventually successful in her claim before the Canadian Human Rights Tribunal (the “Tribunal”), but the Federal Court dismissed the CBSA’s application for judicial review. The CBSA appealed to the Federal Court of Appeal (“FCA”).
The New Test
The FCA established a new test for determining whether an employee has been discriminated against on the basis of family status. To establish a prima facie case of workplace discrimination on the basis of family status, the employee must establish the following:
- a child is under the employee’s care and supervision;
- the childcare obligation at issue engages the complainant’s legal responsibility for that child, as opposed to a personal choice;
- the employee has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions and no such alternative solution is reasonably accessible; and
- the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the child care obligation.
Under the new test, the FCA found that Ms. Johnstone had established that she had two children under her care and supervision. Both children were toddlers and she and her husband could not leave them on their own without breaching their legal obligations towards them. They were legally required to provide some form of childcare arrangement. Ms. Johnstone also made serious, unsuccessful efforts to secure alternative childcare – including investigating numerous regulated and unregulated childcare providers. Finally, the unpredictability in Ms. Johnstone’s work hours made securing third-party childcare “almost impossible.”
Ms. Johnstone therefore clearly made out a prima facie case of discrimination on the ground of family status resulting from childcare obligations. As the CBSA did not assert that the rotating shifts were a bona fide occupational requirement or that accommodating Ms. Johnstone would cause undue hardship, Ms. Johnstone’s complaint under the CHRA was substantiated.
It is unclear how the test may be applied in other cases, particularly in cases under provincial jurisdiction. In any event, it is important to note that employers may nevertheless be able to defend against family status discrimination claims even where prima facie family status discrimination is made out. For example, an employer may be able to establish undue hardship, depending on the particular circumstances surrounding the case.
This case is helpful to employers as it confirms that personal “family choices, such as participation of children in dance classes, sports events like hockey tournaments” are not protected—at least not under federal human rights legislation. Moreover, this case confirms that employers are justified in requiring their employees to make reasonable efforts to address their childcare needs before they are entitled to accommodation. Employers should implement an accommodation application process that requires employees to demonstrate that such reasonable efforts have been made.
Many thanks to Bonnie Tsui for her assistance in drafting this blog.