Federal Court of Appeal Rulings on Landmark Family Status Cases

On May 2, 2014, the Federal Court of Appeal released its long-awaited decisions in Canada (Attorney General) v. Johnstone, 2014 FCA 110 (CanLII) and Canadian National Railway Company v. Seeley, 2014 FCA 111 (CanLII). The rulings confirm that child care obligations fall under the scope of family status under the Canadian Human Rights Act, and clarify the test for meeting a prima facie case of discrimination on the prohibited ground of family status.

Accommodation of family status

The issue of family status has become a hot topic in recent years. Complex and difficult challenges face employers with respect to the treatment and accommodation of employee caregivers. Courts, tribunals and arbitrators have increasingly heard cases where an employee’s needs relating to his or her family status have come into conflict with workplace requirements. Employers may have a legal obligation to accommodate employees who have child care challenges or other family responsibilities, such as caring for an ailing parent. Emerging case law relates mainly to child care, but elder care is certainly an issue as well.

The employer’s duty to accommodate is engaged when an employee is unable to comply with a workplace rule or requirement due to a personal factor that is protected by human rights legislation. As with all other prohibited grounds under this legislation, employers have a duty to accommodate family status needs to the point of undue hardship. In the event that an employee claims that an employer has failed in this duty, a court or tribunal will look at the three-step Meiorin test [1] , outlined below. Once an employee proves a prima facie case of discrimination, the onus switches to the employer to prove that its discriminatory policy or rule is a bona fide occupational requirement (BFOR). A bona fide occupational requirement is an employment policy or standard that is necessary by virtue of the character of the job. This exception will only apply where the employer can demonstrate that:

  1. The policy was adopted for a purpose rationally connected to the performance of the job;
  2. The policy was adopted in an honest and good faith belief that it was necessary to the work-related purpose; and
  3. The policy is reasonably necessary to the accomplishment of that legitimate work-related purpose.

Employers may not have trouble passing the first two parts of the test, but to show that the standard is reasonably necessary, the employer must demonstrate that it cannot accommodate the employee without causing itself undue hardship.

Human rights legislation doesn’t define “undue hardship,” but precedent shows it includes more than mere inconvenience or disruption to the workplace. Employers must assess each employee’s needs individually to determine whether accommodating the employee would cause undue hardship. Factors to consider include financial costs associated with the accommodation, interchangeability of work resources and facilities, and health and safety risks. Staff morale may also be factor in assessing undue hardship if other employees have well-founded concerns. However, employee complaints that are inconsistent with specific human rights, such as complaints that an accommodation is simply “special treatment,” will not assist in establishing undue hardship.

British Columbia’s Human Rights Tribunal recently confirmed that an employer is only obligated to accommodate family status based on an employee’s genuine needs and not mere preferences. Work must cause a “serious interference” with a substantial family duty for the employee to prove discrimination on basis of family status [2] ).

The Federal Court rejected the BC “serious interference” test and has outlined a broader interpretation of the duty to accommodate family status, which opens the door to requiring accommodation of employee lifestyle choices [3] . To qualify for protection under human rights legislation, an employee does not need to prove that work caused a “serious interference” with a substantial family duty, and even ordinary child care or elderly care obligations may qualify. Nonetheless, family obligations must have “substance,” and “the complainant must have tried to reconcile family obligations with work obligations.” Ontario has a similar test [4] ; discrimination on the basis of family status will be triggered when an employee demonstrates that the work arrangement conflicts with his or her ability to perform a required caregiver obligation. The required caregiver obligation is not based on preference or choice.

There is no one test being applied across the country. While the law on accommodating family status is still developing, employers should treat requests for family status accommodation seriously. Employers have a duty to consider whether workplace policies and procedures can be adjusted to accommodate the needs of caregivers. This may include flexible scheduling, alternative work arrangements (e.g., remote access or work-from-home arrangements) or allowing employees to take a leave of absence to care for ill, disabled or aging family members.

The Federal Court of Appeal’s position on accommodating family status

Essentially, the Federal Court of Appeal in the Johnstone and Seeley cases confirmed the following key points:

  • The prohibited ground of family status encompasses child care obligations that:
    • Are immutable (they form an integral component of the legal relationship between a parent and a child)
    • Are not possible to neglect without engaging legal liability
    • Do not constitute personal choices (for instance attending a dance recital or going to a hockey tournament)
  • In order to make out a prima facie case of workplace discrimination on the prohibited ground of family status resulting from a childcare obligation, the individual advancing the claim must show all of these things:
    • A child is under the employee’s care and supervision: Claimants must show that they stand in this type of relationship to the child. In the case of parents, this will normally flow from their status as parents. In the case of de facto caregivers, claimant must show that they have assumed the legal obligations which a parent would have.
    • The childcare obligation engages the individual’s legal responsibility for that child, as opposed to a personal choice: Claimants must show that the child has not reached an age to care for himself or herself during their working hours.
    • The employee has made reasonable efforts to meet that child care obligation through reasonable alternative solutions, and that no such alternative solution is reasonably accessible: Claimants must show that neither they nor their spouse can meet their enforceable child care obligations while continuing to work, and that they have a bona fide child care problem as there is no alternative arrangement accessible to them. This is highly fact-specific.
    • The workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the child care obligation: Claimants must show the interference was more than trivial, and the underlying context of each case in which the child care needs conflict with the work schedule must be examined.

In both cases, the Federal Court of Appeal confirmed that both complainants were able to show that they had child care obligations that were captured under the scope of family status. In like manner, the Federal Court of Appeal had no trouble finding that both complainants were able to make out a prima facie case where alleged workplace discrimination existed on the prohibited ground of family status. Moreover, in both cases the employer was not able to justify the discrimination because they could not show that there was accommodation to the point of undue hardship.

To summarize

The court used a four-part test to determine whether a complainant has presented a prima facie case of discrimination on the prohibited ground of family status:

  1. A child must be under the complainant’s care and supervision;
  2. The child care obligation at issue must engage the individual’s legal responsibility for that child, as opposed to a personal choice;
  3. He or she must have made reasonable efforts to meet that child care obligation through reasonable alternative solutions, without reaching a reasonably accessible solution;
  4. The impugned workplace rule must interfere in a manner that is more than trivial or insubstantial with the fulfillment of the child care obligation.

Some may argue that this test is vague (especially third and fourth requirements) and has ventured far away from the traditional prima facie test of discrimination for any other human rights ground. Some may question whether it is appropriate to create a unique test that does not even come close to resembling the traditional prima facie test at this stage of the human rights analysis. Some may even argue that this has created a hierarchy of human rights grounds.

These cases are particularly relevant to federally regulated employers but still include valuable lessons for provincially regulated employers. These cases will likely go to the Supreme Court of Canada.

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