Discrimination due to family status — the final word?
By Catherine Coulter
In a just-released decision, the Federal Court of Appeal has confirmed that the ground of discrimination due to family status under the Canadian Human Rights Act includes parental obligations that engage a parent’s legal responsibility for a child, such as childcare obligations. But fear not, employers — parental choices such as voluntary family activities will not trigger similar claims of discrimination due to family status.
On 2 May 2014, the Federal Court of Appeal released its long-awaited decision in the case of Johnstone v Canada Border Services Agency (CBSA). Fionna Ann Johnstone had been employed by the CBSA since 1998, and her husband was employed by the CBSA as well. After having children, Johnstone asked for accommodation to her work schedule at Pearson International Airport. The CBSA had a complicated work schedule for its full-time employees, which included rotating through six different start times over the course of days, afternoons and evenings with no predictable pattern, as well as working different work days during the duration of the schedule. The schedule was based on a 56-day pattern and subject to change on five days’ notice. Johnstone could not find a care giver due to her schedule and her husband was unable to cover her work days with any certainty as he was subject to the same unpredictable schedule, albeit one that was not co-ordinated with hers.
Johnstone requested accommodation in the form of a fixed full-time schedule but was only offered a fixed part-time schedule. Interestingly, the CBSA had previously accommodated disabled employees with a fixed full-time schedule, but it refused to do so in this case because it felt it had no duty to accommodate Johnstone’s childcare responsibilities. The case moved through a long and circuitous route beginning in 2004 from the Human Rights Commission to the Federal Court, back to the Human Rights Tribunal and finally to the Federal Court of Appeal (with judicial review of some decisions along the way)…
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