2018 saw a number of developments in employment and labour law. Below, we provide a summary of the top 10 Canadian decisions from the last 12 months that we believe Atlantic Canadian employers should be aware of coming into 2019. Re Lower Churchill Transmission Construction Employers’ Assn Inc and IBEW, Local 1620 (Tizzard) Arbitrator finds […]read more
Breastfeeding and the Duty to Accommodate: Federal Court of Appeal Confirms No Discrimination
In Flatt v Canada (Attorney General), 2015 FCA 250 (CanLII), the Federal Court of Appeal (“FCA”) visited the issue of whether the decision to breastfeed one’s child is protected by human rights legislation.
The FCA was faced with a judicial review application of a decision of the Public Service Labour Relations Employment Board (the “Board”) to dismiss the grievance of Laurie Ann Flat. Flatt’s grievance stemmed from the fact that she and her employer, the Treasury Board of Canada, could not establish a work schedule that would allow her to continue to breastfeed her child. Her grievance alleged that her employer’s failure to accommodate her was discriminatory on the basis of sex and family status, violating the Canadian Human Rights Act as well as the collective agreement in place between the parties.
Flatt was seeking a telework arrangement following her one-year maternity leave which started in March 2012; she was scheduled to return from leave the following March. Flatt ultimately decided to take extended leave without pay with a return to work date of July 1, 2014 which was accepted by her employer. Despite her extended leave, Flatt continued to seek a telework arrangement proposing a work schedule that would allow her to telework two days per week. On the three days in which she would work from the office, she proposed to take two 45 minute breaks to attend to her child’s daycare to breastfeed; these breaks, she requested, would be included in her paid hours and not her lunch breaks. While the employer generally agreed with Flatt’s proposal, it raised concerns with her hours of work, noting that they were to total 37.5 hours per week excluding lunch breaks and the time associated with breastfeeding. The employer also took issue with the length of the arrangement being one year. Rather than work through these issues with her employer, Flatt proposed an entirely new arrangement. The employer subsequently offered Flatt the following three options in order to accommodate her request:
- Work from home one day a week, and in the office four days a week, working a minimum of 7.5 hour a day when in the office;
- Work part-time; or
- Continue on leave-without-pay until she feels that her nursing is complete.
The parties were unable to reach an agreement which resulted in Flatt’s filing of a grievance to the Board, alleging discrimination. The Board found that Flatt’s evidence did not meet the second and third factors of the Johnstone test to establish a prima facie case of discrimination. Rather than stop the analysis there, in case the Board was wrong, it continued on, finding that the employer accommodated Flatt to the point of undue hardship.
Before the FCA, the parties agreed that no matter the basis which the alleged discrimination was analyzed (family status or sex), the issue should be decided pursuant to Canada (Attorney General) v Johnstone, 2014 FCA 110, which set out the four requirements necessary to establish a prima facie case of discrimination on the basis of family status. These factors are as follows:
- the child is under the care and supervision of the employee;
- the childcare obligation engages the employee’s legal responsibility for that child, as opposed to a personal choice;
- the employee has made reasonable efforts to meet those childcare obligations through alternative solutions, and no such alternative solution is reasonably accessible; and
- the workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfilment of the childcare obligation.
The FCA found that while there is no doubt that Flatt’s child is under her care and supervision, meeting the first factor in the Johnstone test, she had not met the second and third factors. Madam Justice Trudel, writing for a unanimous FCA, accepted that there could be cases where breastfeeding is part of a mother’s legal obligation to feed her child and also that breastfeeding can fall under the prohibited grounds of family status and sex. She continued however, that the Board’s determination, that Flatt’s decision to breastfeed her child was a personal choice and that discrimination, if there was any (which it found there was not), would be on the basis of family status, was not an error. The FCA declined to further discuss the Board’s analysis of the jurisprudence surrounding whether the appropriate ground of discrimination was sex or family status.
Key Takeaway for Employers:
In light of this decision and several decisions in recent years regarding a claim of discrimination on the grounds of family status, employers must be increasingly cognizant of their duty to accommodate employees to the point of undue hardship with respect to the requests of employees to schedule work around their legal childcare obligations which can include breastfeeding. The FCA, while finding no discrimination on the facts of this case, certainly did not close the door to such findings in the future where the evidence established discrimination based on an employee’s legal responsibility as compared to a personal choice. In order to be successful with such a claim, the FCA stated that an employee would need to provide evidence to establish that returning to work at the workplace was incompatible with breastfeeding. Examples of such evidence include information regarding the particular needs of a child as well as a medical condition that requires breastfeeding, however the list of examples provided by the FCA was noted as not being exhaustive.
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