The Federal Court of Appeal has released two companion decisions in Attorney General of Canada v Fiona Johnston and the Canadian Human Rights Commission 2014 FCA 110 (“Johnston”) and Canadian National Railway v. Denise Seeley and the Canadian Human Rights Commission 2014 FCA 111 (“Seeley”) that confirm that discrimination on the prohibited ground of “family status” includes child care obligations and in elaborating on the appropriate test to be used in order to determine when an employee can establish a prima facie case of discrimination on the basis of family status contrary to the Canadian Human Rights Act.
The Johnston case involved a human rights complaint whereby the Canadian Border Service was found to have discriminated against Ms. Johnston by not providing her with fixed hours so that she could meet her childcare obligations. The Seeley case involved a human rights complaint whereby C.N. was held to have failed to consider Ms. Seeley’s child care obligations in seeking to her work in Vancouver instead of near her home in Jasper.
Both the Johnston and Seeley cases were appealed and made their way to the Federal Court of Appeal where the court was confronted with the same two questions:
- Did the Human Rights Tribunal commit an error in concluding that “family status” should include a parent’s childcare obligations?
- Did the Human Rights Tribunal apply the correct test for finding a prima facie case of discrimination on the basis of “family status”.
In both cases the Federal Court of Appeal concluded that family status clearly included a parent’s child care obligations. However, the court held it would not include all childcare obligations (i.e. voluntary family decisions like what sports to enroll a child in). Rather, family status would be used to protect only those obligations which engage a parent’s legal responsibility for the child such as appropriate care and supervision. The Federal Court of Appeal summarized its reasoning in Johnston as follows:
In conclusion, the ground of family status in the Canadian Human Rights Act includes parental obligations which engage the parent’s legal responsibility for the child, such as childcare obligations, as opposed to personal choices. Defining the scope of the prohibited ground in terms of the parent’s legal responsibility (i) ensures that the protection offered by the legislation addresses immutable (or constructively immutable) characteristics of the family relationship captured under the concept of family status, (ii) allows the right to be defined in terms of clearly understandable legal concepts, and (c) places the ground of family status in the same category as other enumerated prohibited grounds of discrimination such as sex, colour, disability, etc.
The Federal Court of Appeal then went on to clarify the appropriate legal test that an employee would have to substantiate in order to prove that an employer had discriminated against it on the basis of family status. In doing so, the Federal Court of Appeal emphasized that the employee would have to demonstrate it had looked at various options before asking for accommodation from the employer (a type of balancing between the employee’s needs for flexibility and the employer’s needs to run the business). In this respect, the Federal Court of Appeal created the following four-pronged test to determine if a prima facie case of discrimination had been met:
I conclude from this analysis that in order to make out a prima facie case where workplace discrimination on the prohibited ground of family status resulting from childcare obligations is alleged, the individual advancing the claim must show (i) that a child is under his or her care and supervision; (ii) that the childcare obligation at issue engages the individual’s legal responsibility for that child, as opposed to a personal choice; (iii) 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 (iv) that the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation.
These decisions are significant in that they confirm child care obligations are protected under the prohibited ground of “family status”. Further, they clarify the test to be used to determine if a prima facie case of discrimination exists. Prior to these two cases, the test was “substantial interference”. However, the four pronged test advanced by the Federal Court of Appeal provides a more useful framework to determine if reasonable accommodation has been met or if an employer has engage in discriminatory conduct.
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