Employee Childcare Obligations: A Matter of Human Rights

Lawyer Richard Johnson, Contributor.

blog childcare 1With increasing public awareness and understanding of the concept of “human rights” over the past several decades, most Canadian employees now know that laws exist to protect them from harassment or discrimination in the workplace.

For those employees who aren’t familiar with Canada’s human rights regime here’s a very brief overview:

  • In British Columbia, employees’ human rights are protected by either the BC Human Rights Code or, if they are employed by the federal or a First Nations government or a federally regulated company (such as a bank), by the Canadian Human Rights Act. Both provincial and federal legislation prohibit workplace discrimination on the basis of certain listed “protected grounds”, which include race, colour, religion, sexual orientation, age, family status and marital status.
  • If an employee falls within one of these protected grounds and has a particular workplace need based on that ground, her employer has a duty to accommodate that need. This duty is not absolute however: if the employer can show that the workplace discrimination is due to a “bona fide occupational requirement” (a BFOR), or that accommodating the employee’s needs would cause the employer “undue hardship”, accommodation is not required.
  • The meaning of accommodation, BFOR and undue hardship have all been the subject of various rulings by human rights tribunals at both the provincial and federal level.

What happens when an employee needs protection from discrimination, but his situation or circumstances do not appear to be caught by one of the grounds listed in the applicable legislation?

In some cases, the courts may interpret a protected ground expansively to include those circumstances, and extend the employer’s accommodation duty accordingly.

The Case of Childcare Obligations

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A recent example of this occurred when the Federal Court of Appeal considered an employee’s entitlement to accommodation for the care of her child. Although childcare is not explicitly listed as a ground protected from discrimination, this Court has now clarified that childcare obligations fall squarely within the protection afforded under “family status”, and has provided much-needed guidance regarding the obligations of both employers and employees with respect to childcare accommodations.

Canada (Attorney General) v. Johnstone: “Family Status” includes Childcare Obligations

With its decision in Canada (Attorney General) v. Johnstone, the Federal Court of Appeal affirmed that “family status” protection under the Canadian Human Rights Act includes accommodation for childcare obligations. While the Court was concerned only with the federal human rights statute in that case, we expect its decision will have a significant influence on how the courts interpret provincial legislation going forward.

Johnstone explained how childcare needs fit within the sphere of workplace human rights as follows:

  • To fall within the protection of “family status” grounds, the childcare obligations at issue must be an integral component of the legal relationship between a parent and a child. In other words, they must be those which a parent cannot neglect without engaging his legal liability; a parent cannot leave a young child without supervision at home in order to work, since this would constitute a form of neglect or, in extreme examples, a criminal offence.
  • Voluntary or fun activities such as vacations or sports will not typically pass the “integral component” test since they are considered personal choices, not obligations.

The Court in Johnstone also described in detail what the employee must prove to successfully argue discrimination on the basis of family status in the context of childcare obligations. As in all human rights claims, the employee must show a “prima facie” case of discrimination. The employee’s hurdle here is high, however, as he must demonstrate that:

  • The child is under his care and supervision.
  • The childcare obligation engages his legal responsibility for the child, as opposed to a personal choice. This will involve showing that the child has not reached an age where she can reasonably be expected to care for herself during the parent’s work hours.
  • He has made reasonable efforts to meet his childcare obligations through reasonable alternative solutions, but that no such solution is reasonably accessible.
  • The workplace rule that he is challenging interferes with fulfilling the childcare obligation in a way that is more than trivial or insubstantial.

In short, for an employee to establish a prima facie case of discrimination – or put another way, to establish that her employer has a duty to accommodate her and has failed in that duty – she must show that she has tried, unsuccessfully, to find reasonable childcare alternatives and is therefore unable to fulfill her childcare obligations.

As such, the human rights analysis in the childcare context differs somewhat from what employers are used to. Typically, once an employer is aware that a protected ground is at issue, such as where an employee has a physical disability, the employer must make any necessary and feasible accommodations to allow that employee to work. However, in the childcare context, the onus to find a solution is placed first on the employee; it is only once the employee has assessed solutions and found them lacking that the employer’s duty to accommodate arises, unless there is a BFOR which trumps that duty.

Canadian National Railway Company v. Seeley: A Caution for Employers

At the same time as it issued the Johnstone ruling, the Federal Court of Appeal released the companion decision of Canadian National Railway Company v. Seeley, which affirmed the parameters of accommodation set out in Johnstone.

Seeley is noteworthy for the fact that the Court found that the employer engaged in “reckless conduct” when it failed to assist the employee in determining her childcare needs by providing her with any significant information about a work transfer. As such, Seeley is an important complement to Johnstone as it illustrates that employers who fail to provide an employee with information adequate to allow him to assess his childcare obligations may be at greater risk of a finding of discrimination.

Have questions about human rights in the workplace? Contact us!

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