The Federal Court ruled in 2007 that the Canadian Human Rights Commission should not set an unduly restrictive threshold to establish a prima facie case of discrimination on grounds of family status.
In Johnstone v. Canada (Attorney General)  F.C.J. No. 43 (Fed. Ct.), Johnstone was a customs inspector employed with the Canada Border Security Agency ("CBSA") at Pearson International Airport in Toronto. She could not find childcare that matched her or her husband's shift schedule upon her return from maternity leave. With both her and her husband working rotating shifts, it was essentially impossible to find childcare. Johnstone requested accommodation in the form of three fixed 12-hour shifts per week so that she could schedule childcare when she was not at work.
CBSA had an accommodation policy. It required that Johnstone accept parttime employment in exchange for a fixed shift schedule. Her schedule only provided up to 34 hours per week. Ms. Johnstone eventually started working three 10-hour shifts each week and filed a complaint with the Canadian Human Rights Commission.
The investigator appointed to investigate and review the circumstances of the case recommended to the commission that a conciliator be appointed to attempt settlement of the case and, failing settlement, that the complaint proceed to a tribunal.
The investigator made several findings, including that Johnstone had no choice but to accept the offer of part-time employment and that the policy could have an adverse impact on female employees because such requests are more often made by women than by men. Disregarding the findings and recommendations of the investigator, the commission dismissed her complaint at the screening stage without a hearing. Johnstone applied to the Federal Court for judicial review. The Federal Court concluded that the commission erred in dismissing her complaint. The commission concluded, without reasons, that Johnstone voluntarily accepted the CBSA policy. The failure to provide reasons was unacceptable in the face of the investigator's conclusion, which was based on a substantial body of evidence.
A further error by the commission was its choice of the "serious interference" test to establish a prima facie case of discrimination applied by the B. C. Court of Appeal in Health Sciences Assn. of B.C. v. Campbell River and North Island Transition Society  B.C.J. No. 922.
The B.C. Court of Appeal stated that a prima facie case of discrimination is demonstrated where there is a change in a term or condition of employment imposed by an employer that results in a "serious interference" with a "substantial" parental or other family duty or obligation of the employee. The appellate court went on to state that, in the vast majority of situations in which there is a conflict between a work requirement and a family obligation, it would be difficult to make out a prima facie case of discrimination.
The Federal Court noted that this approach has been criticized. Discrimination complaints are reviewed under a two-part test: first, a complainant must demonstrate a prima facie case that if unanswered by the employer would amount to discrimination and, second, the employer must then demonstrate that the treatment is not discriminatory and amounts to a bona fide occupational requirement (B.F.O.R.). The commission's analysis improperly combined both stages into one. This approach has also been criticized as irreconcilable with the requirement to interpret human rights codes liberally so their objectives will be fulfilled.
The Federal Court concluded, first, that the commission's decision turned on a discrete and abstract question of law and, as such, was reviewable on a standard of correctness. Second, it concluded that there was no reason to apply a higher standard of proof to demonstrate prima facie discrimination in the context of "family status" complaints than for other grounds of discrimination. The court further stated that limiting complaints based on "family status" to situations where the employer has changed a term or condition of employment would be unduly restrictive. Normally the operative change arises within the family and not in the workplace, for example the birth of a child or a family illness.
In its concluding remarks, the court stated that the law is not settled with respect to the balancing of competing workplace interests insofar as family status accommodation is concerned.
The court was particularly concerned about employers who deal with accommodation requests or employees with family responsibilities by offering less lucrative shift schedules (with fewer shift premiums or overtime premiums, for example). The purpose of an employer's policy and whether its aim is to discourage employees from seeking accommodation, instead of motivating the nonaccommodated workforce to accept rotating shift work, is an important factor in determining whether the policy is discriminatory.
Robert Monti practises employment law with Nelligan O'Brien Payne LLP, a full service law firm in Ottawa.
[This article is reprinted with permission and first appeared in the July 2007 issue of The Lawyers Weekly.]