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Federal Court of Appeal lays out test for family status discrimination as it relates to childcare matters

Jurisdiction: - Canada/Federal

The Federal Court of Appeal ("FCA") issued two decisions on May 2, 2014, in which it laid out the test for family status discrimination as it relates to childcare matters. Subject to a further appeal to the Supreme Court of Canada, this test is binding on federally regulated employers. The two cases are:

  1. Canada (Attorney General) v. Johnstone, 2014 FCA 110, which concerned an employee of the Canada Border Services.

    (Note: I wrote a previous entry on the Canadian Human Rights Tribunal's 2010 decision in this case, which can be found here; Discrimination based on "family status" where Canada Border Services refused to modify schedule for mother of two"); and
  2. Canadian National Railway Company v. Seeley, 2014 FCA 111.

It is the Johnstone decision that contains the FCA's analysis of the law on this issue and the formulation of the test. In that decision, the FCA first confirmed that the "family status" protection found in the Canadian Human Rights Act incorporates parental obligations such as childcare obligations. The FCA then discussed: (1) the type of childcare activities that are contemplated by the prohibited ground of family status; and (2) laid out the legal test for finding a prima facie case of discrimination on this prohibited ground.

Type of childcare activities that are contemplated by the prohibited ground of family status

As it relates to the type of childcare activities that are contemplated by the prohibited ground of family status, the FCA stated:

"...the precise types of childcare activities that are contemplated by the prohibited ground of family status need to be carefully considered. Prohibited grounds of discrimination generally address immutable or constructively immutable personal characteristics, and the types of childcare needs which are contemplated under family status must therefore be those which have an immutable or constructively immutable characteristic.

It is also important not to trivialize human rights legislation by extending human rights protection to personal family choices, such as participation of children in dance classes, sports events like hockey tournaments, and similar voluntary activities. These types of activities would be covered by family status according to one of the counsel who appeared before us, and I disagree with such an interpretation.

The childcare obligations that are contemplated under family status should be those that have immutable or constructively immutable characteristics, such as those that form an integral component of the legal relationship between a parent and a child. As a result, the childcare obligations at issue are those which a parent cannot neglect without engaging his or her legal liability...

 - - -

Voluntary family activities, such as family trips, participation in extracurricular sports events, etc. do not have this immutable characteristic since they result from parental choices rather than parental obligations. These activities would not normally trigger a claim to discrimination resulting in some obligation to accommodate by an employer" (paras. 68-70 & 72).

The legal test for finding a prima facie case of discrimination on the prohibited ground of family status

Next, the FCA stated that in order to make out a prima facie case of workplace family status discrimination resulting from childcare obligations, the individual advancing the claim must show:

  1. that a child is under his or her care and supervision;
  2. that the childcare obligation at issue engages the individual's legal responsibility for that child, as opposed to a personal choice;
  3. 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
  4. that the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation.

The FCA then went on to explain further about each of these factors as follows:

First Factor

"The first factor requires the claimant to demonstrate that a child is actually under his or her care and supervision. This requires the individual claiming prima facie discrimination to show that he or she stands in such a relationship to the child at issue and that his or her failure to meet the child's needs will engage the individual's legal responsibility. In the case of parents, this will normally flow from their status as parents. In the case of de facto caregivers, there will be an obligation to show that, at the relevant time, their relationship with the child is such that they have assumed the legal obligations which a parent would have found" (para. 94).

Second Factor

"The second factor requires demonstrating an obligation which engages the individual's legal responsibility for the child. This notably requires the complainant to show that the child has not reached an age where he or she can reasonably be expected to care for himself or herself during the parent's work hours. It also requires demonstrating that the childcare need at issue is one that flows from a legal obligation, as opposed to resulting from personal choices" (para. 95).

Third Factor

"The third factor requires the complainant to demonstrate that reasonable efforts have been expended to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible.  A complainant will, therefore, be called upon to show that neither they nor their spouse can meet their enforceable childcare obligations while continuing to work, and that an available childcare service or an alternative arrangement is not reasonably accessible to them so as to meet their work needs. In essence, the complainant must demonstrate that he or she is facing a bona fide childcare problem. This is highly fact specific, and each case will be reviewed on an individual basis in regard to all of the circumstances" (para. 96).

Fourth Factor

"The fourth and final factor is that the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation. The underlying context of each case in which the childcare needs conflict with the work schedule must be examined so as to ascertain whether the interference is more than trivial or insubstantial" (para. 97).