Breastfeeding Need Not Be Accommodated by Telework

In Flatt v. Treasury Board (Department of Industry), the Public Service Labour Relations and Employment Board has rejected a public servant’s complaint that Industry Canada discriminated against her on the basis of family status when it refused to let her work from home full-time while breastfeeding.

Facts of the case

Laura Marie Flatt is a spectrum management officer, working for the Spectrum Management Operations Branch of Industry Canada in Burlington, Ontario. The Spectrum Management Operations Branch oversees the radio frequency spectrum in Canada. A spectrum management officer has both technical and administrative duties, which may require working from an office or visiting licensees to address problems.

Between September 2007 and March 2013, Flatt had three children and took three maternity leaves. After each leave, she requested a telework arrangement to help her manage her new family obligations. The employer agreed to the initial two arrangements—first for one day of telework per week, then for two days. During her third maternity leave, Flatt requested one year of full-time telework or, alternatively, two days of telework and three days in office on a modified schedule, in order to allow her to breastfeed her new son. The employer initially accepted the alternative proposal, but later had second thoughts, saying it was only willing to allow her to telework one day a week. As an alternative, the employer said Flatt could take an extended leave of absence without pay.

As a result, on March 28, 2013, Flatt launched a grievance alleging that the employer discriminated against her on the grounds of sex and family status when it refused her request to telework from home full-time for a year following the end of her 12-month maternity leave in March 2013, to breastfeed her child. In her grievance, Flatt stated:

“I have a need to change the way I work because of breastfeeding… Management has forced me into an unsuitable situation and the hardship of having to take leave without pay.”

In response to the grievance, the employer argued that the decision to allow Flatt to work from home five days a week in this case would have a profound impact on the organization and could cause undue hardship. According to the employer, Industry Canada had decided in April 2012 that, due to downsizing (between 2009 and 2013, the number of personnel in the spectrum management operations branch, where Flatt worked, shrank from 17 to 11), it could no longer allow employees to telework, except under exceptional circumstances.

Despite the grievance, Flatt took an unpaid leave to continue breastfeeding, but was forced by financial considerations to return to work in October 2013, six months earlier than she had hoped.

Decision

The board found that “discrimination on the basis of breastfeeding, if it is discrimination, is discrimination on the basis of family status rather than sex or gender.” However, the board decided that Flatt did not make a prima facie case of discrimination based on family status for the following reasons.

The test for prima facie discrimination based on family status was set out by the Federal Court of Appeal in Canada (Attorney General) v. Johnstone, 2014 FCA 110 (Johnstone):

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.

• Flatt could not meet the second part of the test. A parent’s legal responsibility is to nourish the child, but how the parent fulfils that responsibility is a question of choice. Breastfeeding is one of those choices, but not the only one. In this case, there was no evidence suggesting that there was some physical need that necessitated breastfeeding. Also, Flatt never explained why teleworking five days per week was necessary with her third child but not with her other two children.
• Flatt could also not meet the third condition of the test. There were alternatives to teleworking five days per week that would have helped her maintain her son’s breastfeeding schedule. Indeed, ” she had found a daycare close to the Burlington office that would have allowed her to keep her breastfeeding schedule but then had decided not to pursue that option and eventually returned to her original proposal.”

The evidence submitted by the grievor did not establish a failure on the employer’s part to accommodate her. The duty to accommodate is not a one-way street. The employee must cooperate in the process and is not entitled to have his or her choice among several suitable alternative accommodations. In this case, Flatt “ultimately refused to yield from her original request.”

The board added:

“Finally, if I am wrong in my decision with respect to the issue of discrimination, it is also my decision that on the facts of this case the employer did take steps to accommodate the grievor to the point of undue hardship.”

Therefore, the grievance was dismissed.

What can we take from this case?

Cases such as this largely depend on their particular facts, although the board did rely on the principles set out by the Federal Court of Appeal’s Johnstone decision to determine whether there was a prima facie case of discrimination based on family status. The test contained in that case must be met in order to move to the second stage and determine whether the employer accommodated the employee to the point of undue hardship.

Interestingly, this case confirmed that breastfeeding falls under the umbrella of family status and not sex or gender. This is somewhat surprising, given that several policies of Human Rights Commissions discuss the topic of breastfeeding under sex. For example, the Ontario Human Rights Commission has a brochure discussing pregnancy and breastfeeding, which clearly states:

“The Code makes it against the law to discriminate against someone or to harass them because of sex, including pregnancy and breastfeeding.”

It will be interesting to see whether this becomes a precedent in future cases.