Employers Must Accommodate Childcare Obligations

 In Employment Law

Human rights legislation prohibits an employer from discriminating against an employee on the basis of “family status”. Does this protection require an employer to modify a work schedule or refuse a work assignment due to child care obligations? In Canadian National Railway v. Seeley, 2013 FC 117, the Federal Court of Canada confirms that family status protection offered by human rights legislation includes childcare obligations, and that employers must meaningfully consider parents requests for accommodation based on childcare obligations, or they run the risk of violating human rights legislation.

Ms. Seeley was employed by CN as a freight train conductor and her home terminal was in Jasper, Alberta. After a lengthy layoff, CN recalled her to a position in Vancouver. Ms. Seeley was required to report to the Vancouver terminal within 15 days. Ms. Seeley advised CN that since her layoff, she had two children, one six years old in kindergarten and the other 21 months old in daycare. She also noted that her husband was a CN employee away for long hours, so she was primarily responsible for childcare responsibilities outside of business hours. She requested a 30-day extension to consider childcare options. She also asked for relief from the obligation to report to Vancouver on compassionate grounds. CN never responded, nor did it provide her with any information about the term of the recall assignment in Vancouver, or any information about housing or possible childcare options in Vancouver. CN maintained its view that under the collective agreement, Ms. Seeley was required to report to Vancouver. Although extensions of time were given to Ms. Seeley, when Ms. Seeley continued to refuse to report for duty in Vancouver, her employment was terminated.

Ms. Seeley filed a complaint with the Canadian Human Rights Commission alleging discrimination on the basis of family status. The Canadian Human Rights Tribunal (the Tribunal) allowed her complaint. The Tribunal decided that “family status” included parental childcare obligations, that there was a prima facie case of discrimination and that CN failed to properly accommodate Ms. Seeley’s request for accommodation. The Tribunal ordered CN to review its accommodation policy, reinstate Ms. Seeley to her position, pay compensation to Ms. Seeley for lost earnings and awarded Ms. Seeley additional compensation for pain and suffering and for reckless conduct by CN.

CN applied for a judicial review of the Tribunal’s findings. CN argued that the Tribunal’s broad interpretation of “family status” which equated family status with personal parenting choices was wrong. CN suggested that a broad interpretation of “family status” which included personal parenting choices would cause “disruptions and great mischief” in the workplace. The Court rejected CN’s argument for a narrow interpretation of family status, and held that childcare obligations were properly within the scope of the term family status. The Court did note that not every instance of tension or conflict between a workplace requirement and childcare would garner the protections of human rights legislation. It is only when an employment rule or condition interferes with an employee’s ability to meet a substantial parental obligation in any realistic way that he case for prima facie discrimination based on family status is met.

The Court confirms that employees an employee must have tried to reconcile family obligations with work obligations. However, in Ms. Seeley’s case, she asked CN for accommodation related to childcare on several occasions. CN did not respond to her requests seriously and failed to engage Ms. Seeley in any meaningful discussion about possible accommodations that may have been available. As a result, CN discriminated against Ms. Seeley based on family status and violated human rights legislation. Employers should always take requests for accommodation seriously, and must be flexible in developing solutions which permit employees to meet their childcare responsibilities.

Russell MacCrimmon and Colleen Hoey are Ottawa-based lawyers practicing in the areas of Employment Law, Human Rights Law, and Civil Litigation at Mann & Partners, LLP. The articles on this blog are not intended to provide legal advice. Should you require legal advice, please contact Mann & Partners, LLP at 613-722-1500.

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