A new test for family status discrimination

A recent decision by the Federal Court has provided yet another approach to the issue of “family status” accommodation in the workplace. While this decision is only applicable to federally-regulated employers, it touches upon issues that are faced by any employer that has employees with childcare obligations.

Canada (Attorney General) v. Johnstone may represent a significant shift in the test to be applied to cases involving discrimination on the basis of family status. Previously, one line of cases held that in order to show discrimination, an employee must show that he or she had experienced a “serious” interference with a substantial parental or other family duty. This approach implied that a non-serious or “ordinary” interference with parental duties was permissible, thereby raising the bar for employees attempting to obtain accommodation. In most cases, this has meant that employees are required to demonstrate that they have unusual or extraordinary parental obligations, such as a child with a significant disability, in order to obtain accommodations such as a schedule change.

In Johnstone, the Federal Court rejected the “serious interference” test, on the basis that any significant interference with a substantial parental obligation is serious.  Instead, the Federal Court held that a prima facie case of discrimination based on family status will be made out when “an employment rule or condition interferes with an employee’s ability to meet a substantial parental obligation in any realistic way”. The parental obligation in question must be “one of substance”, and the employee must have at least tried to reconcile family obligations with work obligations. In the Johnstone case, the Federal Court agreed with the Canadian Human Rights Tribunal that the employer had discriminated against the employee when it attempted to enforce its “unwritten policy” that all full-time employees must work a rotating shift schedule, notwithstanding their childcare obligations.

It remains to be seen what effect this decision will have on provincial human rights tribunals. However, it does suggest a trend in the case law that may require employers to be more flexible when dealing with requests by employees for accommodation, particularly when the employee can demonstrate that their own attempts to meet the obligation outside of the workplace have been unsuccessful.

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