Fiona Johnstone was a full-time border services officer for the Canadian Border Services Agency (CBSA) at Toronto Pearson International Airport. She worked rotating shifts and had difficulties scheduling childcare, so she requested a fixed schedule to facilitate her childcare arrangements.
CBSA refused her request, so Johnstone filed a human rights claim under the federal Canadian Human Rights Act, alleging discrimination on the basis of family status. The federal court agreed that CBSA discriminated against Johnstone and held that she was entitled to an accommodated work schedule due to her childcare obligations.
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It took nine years for this final decision to be made. What can employers learn from this prolonged (and costly) process?
The Canadian Human Rights Act prohibits discrimination against employees based on family status, and the Federal Court made it clear that parental childcare obligations come within the scope of family status. The Johnstone decision has the potential to impact all federally regulated employers.
Family status is also a prohibited ground of discrimination in provincial human rights legislation (with the exception of New Brunswick and Newfoundland), and, therefore, the Johnstone decision will likely be considered in claims brought under the jurisdiction of provincial human rights legislation.
The effect on employers
Companies should treat requests for accommodated work schedules based on childcare needs as they would requests for accommodated work schedules based on, for example, medical issues and religious beliefs. Employers need to take these requests seriously and may need to accommodate the request to the point of undue hardship.
The CBSA is a large employer with many shifts available daily, and it was not a disproportionate number of employees who needed modified shifts. CBSA had previously allowed employees to work fixed schedules to accommodate medical issues, which demonstrated that modified work schedules were feasible. Further, it was shown that CBSA had previously been ordered by the Canadian Human Rights Tribunal to create policies to address accommodation of childcare obligations for new mothers but failed to do so.
The CBSA could have accommodated Johnstone’s fixed schedule request without creating undue hardship on the organization.
However, modified work schedules may well create undue hardship for certain organizations. If such an undue hardship exists, human rights legislation allows an organization to reject modified work schedules even if it causes childcare problems for its employees.
The Tribunal in Johnstone described the values underlying the decision as follows:
“The freedom to choose to become a parent is so vital that it should not be constrained by the fear of discriminatory consequences. As a society, Canada should recognize this fundamental freedom and support that choice wherever possible.
“For the employer, this means assessing situations such as Ms. Johnstone’s on an individual basis and working together with her to create a workable solution that balances her parental obligations with her work opportunities, short of undue hardship.”
To avoid finding your own organization before a court of law, employers need to carefully consider each request by a working parent for modified shifts on a case-by-case basis, and ensure that the response is appropriate and legally sound.
Jonas McKay is a lawyer at Spectrum HR Law. jmckay@spectrumhrlaw.com.
This article contains general information only and does not constitute legal advice.