For certain parents, it is a reality that creating a balance between work and family brings with it a reduction in employment opportunities. Fiona Johnstone, a mother with two small children and an employee of Canada Border Services Agency, had to deal with just such a reality before the Canadian Human Rights Tribunal handed down its decision in Johnstone v. Canada Border Services, 2010 CHRT 20.
In August of 2010, the Tribunal concluded that the Agency failed to meet its obligation to accommodate Ms. Johnstone's family obligations, more specifically, the fact that she was required to provide care to her children.
The Canadian Human Rights Act states that "family status" is an enumerated ground of discrimination. Even though there is a certain amount of case law to the contrary, family status discrimination generally has included any discrimination based on an employee's family responsibilities, including the care of one's children. There has been a debate over the extent of an employer's duty to accommodate its employees' family obligations. In Health Sciences Assn. of British Columbia v. Campbell River and North Island Transition Society, [2004] B.C.J. No. 922, the British Columbia Court of Appeal adopted a higher threshold for deciding whether there had been discrimination based on family status. This threshold was in contrast to the lower threshold used for other grounds of discrimination, such as ethic origin, sex, and disability. There have, therefore, been two approaches used by courts and human rights commissions to decide whether a case was an example of family status discrimination. In Campbell River, the Court decided that a complainant had to show significant interference. In Johnstone, the Human Rights Tribunal studied this ongoing debate and the two different approaches before deciding that it was not necessary to identify a serious interference before deciding that an individual had been the victim of discrimination.
Ms. Johnstone was working irregular shifts on a rotating 24-hour schedule, 7 days per week.This schedule meant that it was impossible to coordinate the care of her children. Even though the Agency had allowed her to work fixed shifts, the result was that she was forced to become a part-time employee in circumstances where she would otherwise have continued to be a full-time employee. Among other things, this arrangement resulted in a reduction in her pensionable service.
The Tribunal took the approach that, in order to make out a prima facie case of discrimination, a complainant had to show interference, even if that interference was not serious. The Tribunal summarized its approach to the case in the following way: "[…] an individual should not have to tolerate some amount of discrimination to a certain unknown level before being afforded the protection of the Act […]. Either there is or is not discrimination found in any given complaint process. If so, there cannot be a hierarchy of grounds. The Act does not suggest this."
After concluding that Ms. Johnstone had established a prima facie case of discrimination, the Tribunal turned its mind to the question of whether the employer had demonstrated that it would suffer undue hardship if it had to accommodate her family obligations.
In arriving at its decision, the Tribunal said it understood that the Agency had an unwritten policy to the effect that it would not provide enough hours to allow an employee who was asking for family obligation accommodation to work full-time. On the other hand, if the request was based on medical or religious grounds, the Agency would provide fixed shifts up to full-time. In addition, the Tribunal rejected the employer's argument that health and safety standards would be compromised if it permitted an employee to work a larger number of consecutive hours over a three-day work week, as Ms. Johnstone had suggested. Finally, the Tribunal rejected the employer's argument to the effect that having to accommodate Ms. Johnstone's family obligations would create an uncontrollable situation where the employer would be required to accommodate all family obligations of all other employees with children.
The Tribunal ordered the Agency to compensate Ms. Johnstone for her loss of salary and benefits related to her pension as well as to pay her $15,000 in damages for pain and suffering and $20,000 for the employer's deliberate conduct in this matter.
This decision is reassuring for any parent wanting to balance its family obligations and employment opportunities. It is clear, following the reasoning of this case, that any employer will have to study requests by parents on a case-by-case basis in light of the guidance that the Canadian Human Rights Tribunal has provided.
Author: Julie Skinner, © Nelligan O'Brien Payne LLP 2010
