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Employee not discriminated against as breastfeeding a “choice”- Federal Court of Appeal Decision

breastfeedingThe recent decision by the Federal Court of Appeal of Flatt v. Canada (Attorney General), addresses the employer’s duty to accommodate. Ms. Laura Flatt, the applicant, sought a judicial review from the Public Service Labour Relations and Employment Board (Board) after her grievance against her employer, the Treasury Board of Canada, was dismissed. The applicant had filed her grievance based on discrimination on the grounds of sex and family status contrary to the Canadian Human Rights Act.

Background

The applicant worked as a full-time supervisor within the Spectrum Management Operations Branch of Industry Canada. Following her third maternity leave, the applicant wished to continue breastfeeding her infant. She gave no medical reason to her employer for this request. The applicant and the employer had been able to reach an amicable agreement in terms of accommodating her breastfeeding in her two previous maternity leaves, with the employer allowing the applicant to perform part of her work at home via teleworking arrangements.

With this new request, the applicant explored the possibility of finding a daycare close to her workplace, allowing her to continue breastfeeding her child while working physically in the office. She proposed a schedule whereby she would telework two days per week, breastfeeding her child on two 45 minute breaks to attend the daycare center. The applicant wanted the breastfeeding time to be included in her paid hours and did not wish to forfeit her lunch breaks, only agreeing to count her two 15 minutes paid coffee breaks towards the breastfeeding time. [i]

The employer disagreed with this proposal and suggested various alternatives for accommodation, among other things, suggesting a proposal whereby the applicant worked 37.5 hours excluding lunch breaks and time associated with breastfeeding.

The applicant subsequently rejected the employer’s offers and counter proposed another offer that included telework from her home and varied work hours in order to continue breastfeeding.

A number of options were discussed between employer and employee, but they were unable to reach a viable schedule to allow the applicant to continue breastfeeding her child.

Analysis

The Board, in their decision to dismiss the initial application, had turned to the “Johnstone test” referring to Canada (Attorney General) v. Johnstone, 2014 FCA 110 (CanLII), and concluded the applicant’s evidence fell short of meeting the standards of the test, stating in their decision that the applicant had not established a prima facia case of discrimination, and that the employer had accommodated the applicant to the point of undue hardship.[ii]

Referring to the Johnstone factors, the applicant argued that the equivalent for her of Ms. Johnstone’s legal obligation to care for her child is her “legal obligation to nourish her son by breastfeeding him”.[iii]

The Court disagreed with the comparison, instead concurring with the finding of the Board that the applicant was breastfeeding her child out of personal choice. The Court, in their decision, stated:

It seems to me that to make a case of discrimination on the basis of sex or family status related to breastfeeding, an applicant would have to provide proper evidence, foreseeably divulging confidential information. For example, such information may address the particular needs of a child or particular medical condition requiring breastfeeding; the needs of an applicant to continue breastfeeding without expressing her milk; and the reasons why the child may not continue to receive the benefits of human milk while being bottle-fed. This list of examples, of course, is not exhaustive. The purpose of such evidence would be to establish that returning to work at the workplace is incompatible with breastfeeding.”[iv]

In the case at bar, the Court found any such information lacking, and concluded that in the applicant’s case, breastfeeding during work hours was not a legal obligation towards the child under her care, but rather a personal choice.[v] In addition, the Court also asserted that the applicant had not made a reasonable effort to find a viable solution in regard to addressing the employer’s reasonable concerns with her proposal to leave the office twice a day for 45 minutes to breastfeed her child during paid hours.[vi]

Decision

The Federal Court of Appeal concurred with the decision of the Board, and as such, the application for judicial review was dismissed with costs. Noteworthy, was the fact that the Court was very careful to point out in their decision that it “does not wish these reasons to be understood as trivializing breastfeeding, but rather the case at bar is about the difficulties of balancing motherhood and career.”[vii]

Flatt v. Canada (Attorney General) reiterates the employer’s duty to accommodate to the point of undue hardship, as well as the need for flexibility on behalf of the employee.


[i] Flatt v. Canada (Attorney General), 2015 FCA 250 (CanLII)

[ii] Ibid., para. 25

[iii] Ibid., para. 31

[iv] Ibid., para. 33

[v] Ibid., para. 35

[vi] Ibid., para.35

[vii] Ibid., para. 38

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Kevin Sambrano

Kevin Sambrano, B.A.A. is a paralegal who is passionate about human rights. Kevin worked for a number of years as a tenant advocate organizing over 100 tenant associations and taking part in over 80 positive outcome negotiations. He completed his internship at a law firm, focusing in human rights and employment law. Recently, Kevin opened the doors of Sambrano Legal Services offering representation in human rights and employment law in Toronto and the GTA.Read more
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