On January 31, 2013, the Federal Court upheld a decision of the Canadian Human Rights Tribunal that found that Canada Border Services discriminated against an employee – on the basis of family status – because it did not accommodate her child care obligations: http://decisions.fct-cf.gc.ca/en/2013/2013fc113/2013fc113.html

So far, this is all that is being reported in the media. Not surprisingly, a broad-based statement like this – without explanation or context – can create unwarranted panic and confusion.

As with every “award” issued by third party adjudicators, it is critical that we look at the specific facts at play, the rationale for the decision and any guidance it provides to employers moving forward. We should then use these factors to help us in our decision-making processes. We should not – ever – simply apply a broad “pronouncement” about a decision without first understanding its underlying facts and rationale.

Fundamental Facts

In this case, the Employer runs a 24/7 operation. The collective agreement has a rotating shift pattern –shifts are often irregular and unpredictable. Full-time employees rotate through six different start times over the course of days, afternoon, and evenings with no predictable pattern. Employees work different days of the week throughout the duration of the schedule.

Full-time employees worked 37.5 hours based on an 8 hour day. However, overtime hours are required.

The employer has an unwritten policy that that anyone seeking accommodation for childcare – with fixed shifts – may be accommodated but only with part-time work. This results in a loss of pension and benefit entitlements.

In finding that Canada Border Services discriminated against this employee on the basis of family status, the Tribunal considered the following key facts:

• employees with established medical conditions or religious requirements are accommodated with full-time work;
• the unwritten policy is applied in an arbitrary and inconsistent manner by the management team – that is, even outside the accommodation process, there are employees working full-time fixed shifts and part-time employees who have been permitted to maintain full-time pension and benefit entitlements;
• this employee made a number of good faith efforts to secure childcare without success, largely due to the variable, 24/7 rotating schedule;
• the employee was willing to be flexible in the days and hours worked provided she could work fixed full-time shifts; and
• the Employer made no attempt to consider these options or inquire into the employee’s individual circumstances choosing to rely on its unwritten (and inconsistently applied) blanket policy.

Key Commentary

In the Federal Court decision, the judge stated that:

• the term “family status” includes childcare obligations;
• the childcare obligations must be one of substance and the employee must have tried to reconcile family obligations with work obligations;
• prima facie discrimination is established when an employment rule/policy interferes with an employee’s ability to meet a substantial parental obligation in any realistic way;
• if prima facie discrimination is established, an employer must demonstrate, through substantive evidence (not “impressionistic” evidence), that it cannot accommodate the employee to the point of undue hardship.

What Does this Mean for You?

When faced with requests for accommodations based upon childcare, it is critical that employers take the following steps (and prove that they have done so using proper process and documentation!):

• consider – and individually assess – the specific request being made;
• do not automatically accept or reject the request being made. Push the “pause button” and start asking questions;
• is the childcare obligation – on the evidence before you – one of substance? If you are not certain, ask more questions before arriving at your answer. Do not make this decision (or any management decision) in the face of missing data or unanswered questions;
• has the employee attempted to reconcile his/her family obligations with work obligations? How?
• Ask questions, collect evidence and then arrive at your conclusion;
• Based on the evidence you have gathered, does the policy interfere with a substantial parental obligation?
• If it does (or if there is a reasonable chance that a Court/arbitrator/tribunal will think it does!), then consider if you can reasonably accommodate the employee? It is important – at this stage – to think creatively, consider various options – and document that you have done so. Include in your analysis and documentation, why various options were rejected.
• Ensure – more generally – that your workplace processes and policies are applied consistently by the management team. It is embarrassing to the organization – and often fatal to a case – when an employer defends its actions by referencing a “significant policy/rule” only to find out later that the policy/rule hasn’t been followed consistently.
• When making decisions, step back – look at all of the evidence – and ask “how do we look in this situation? How might we look to a third party”? If you are comfortable with the optics and substance of your decision, go for it. Otherwise, be prepared to re-think your approach and go back to the drawing table – or in this case – the decision table.

Remember, it is not only the decisions we make – but how we make them – that determines our integrity as managers and our reputation as respectful employers – both to our employees as well as to the outside world.

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Happy Family Day everyone. Enjoy your long weekend.