Ira Marcovitch, Summer Law Student
In a recent decision, the Federal Court of Appeal upheld the Canadian Human Rights Tribunal’s (“CHRT”) finding that Canada Border Services Agency (“CBSA”) had discriminated against one of its female customs officers by failing to provide sufficient accommodation after her return from maternity leave.
The facts are simple enough. Ms. Johnstone and her husband worked for Canada Border Services Agency. At the time, CBSA policy was to have employees on a rotating shift plan, where they would work 37.5 hours a week with no fixed pattern of work days, or start and end times. At the time, CBSA had an unwritten policy of providing accommodation in the form of a fixed full-time schedule to those with religious or medical limitations. However, in the case of childcare obligations, the CBSA felt somewhat less generous, and would only offer fixed schedules up to 34 hours a week. While an extra 3.5 hours a week may not seem onerous, the effect of a 34 hour schedule was that the person would be considered a part-time employee, and would be unable to access various benefits such a pension entitlements and promotion opportunities.
Prior to returning to work from maternity leave, Ms. Johnstone requested that the CBSA place her on a fixed schedule, as she only had access to childcare arrangements with family members for 3 days out of each week and was unable to make reasonable arrangements for the other days. Acting on its unwritten policy, CBSA offered Ms. Johnstone a schedule of 34 hours per week.
In its decision, the CHRT found that the CBSA had discriminated against Ms. Johnstone on the basis of family status, an enumerated ground in the Canadian Human Rights Act (“CHRA”). The Tribunal found that the definition of ‘family status’ was broad enough to encompass childcare obligations, and that CBSA’s policy of limiting employees returning from maternity leave to part-time shifts amounted to prima facie discrimination. They found that the freedom to choose to become a parent was so vital that it imposed a duty on employers to work with the employee to create a solution that balances parental obligations with work opportunities. Having found that the CBSA failed to establish that the discriminatory practice was a bona fide occupation requirement or that accommodation would impose undue hardship on the agency, the CHRT found that Ms. Johnstone’s complaint was made out, ordered that damages be paid and that the CBSA engage with the CHRT to draft new scheduling policies.
After a failed attempt to have the decision quashed by the Federal Court, the Crown appealed the matter to the Federal Court of Appeal. In a wide-ranging and comprehensive review, the Court found that a broad and liberal interpretation of the CHRA supported the CHRT’s finding that ‘family status’ includes protection for parental obligations which engage a parent’s legal responsibility for the child, such as childcare obligations. Having found this, they easily concluded that the actions taken (or lack thereof) by CBSA in accommodating Ms. Johnstone were insufficient. With the exception of a few minor points, the Court dismissed the Crown’s appeal and upheld the decision of the CHRT.
Find the full text of the FCA’s decision here.