A decision released by the Federal Court in January 2013 confirms that employers must accommodate their employees with parental obligations to the point of undue hardship: Johnstone v A.G. (Canada).
Fiona Johnstone and her husband worked as border services officers for the Canadian Border Services Agency (“CBSA”) at Pearson Airport. Both Ms. Johnstone and her husband were full-time employees who performed rotating and fluctuation shift work. After she had children, Ms. Johnstone was unable to secure a child care provider that would work around her fluctuating and unpredictable schedule. Accordingly, Ms. Johnstone requested fixed full-time hours from her employer, so that she could secure child care and continue in her career with the CBSA.
CBSA agreed to give Ms. Johnstone fixed hours on a part-time basis only, and refused to give her full-time fixed hours. Being reduced to part-time status meant that Ms. Johnstone was not eligible for the benefits, pension, and promotion opportunities available to full-time employees. Ms. Johnstone asked to remain on full-time status and offered to top up the pay difference to maintain her full time status, but this was denied by CBSA.
Ms. Johnstone brought a complaint to the Canadian Human Rights Commission, and the Commission’s finding that Ms. Johnstone was discriminated against on the basis of her family status was upheld by the Federal Court.
The Court found that CBSA’s refusal to grant Ms. Johnstone full-time status was arbitrary. CBSA had accommodated its employees who requested full-time fixed schedules for religious and medical reasons; however, Ms. Johnstone’s request for full-time fixed hours was rejected without serious consideration. The Court agreed that there would be no undue hardship to CBSA to grant Ms. Johnstone’s accommodation request.
In its decision, the Court explained that a prima facie case of discrimination is established when an employment related rule or policy “interferes with an employee’s ability to fulfill her substantial parental obligations in any realistic way.” Once a prima facie case is established, it will be up to the employer to show that the rule or policy is a “bona fide occupational requirement” and that it could not accommodate the employee due to undue hardship, financial or otherwise.
As a remedy, the CBSA was ordered to compensate Ms. Johnstone for her lost wages and benefits, and lost pension contributions she would have received during the period in question, in addition to $35,000 in damages.