Saturday, 29 August 2015

Employers Need Not Accommodate Employees “Choice” to Breastfeed - PSLREB

Are work requirements that impact on an employee’s breastfeeding schedules discrimination and, if so, are they discrimination on the basis of sex or family status or both? And does the distinction, if any, matter? What is necessary for a grievor to establish a prima facie case of discrimination on the basis of breastfeeding? What duty, if any, does an employer have to accommodate an employee who is breastfeeding, and how far — and for how long — does that duty extend?

Those were the questions that Public Service Labour Relations and Employment Board member Augustus Richardson was asked to answer in the case of Flatt v Treasury Board (Department of Industry), 2014 PSLREB 2 (CanLII). Not easy questions to be sure.

The Facts

The case concerned a grievance filed to the PSLREB on behalf of Laura Marie Flatt against her employer, the Treasury Board.

Ms. Flatt, grieved that her employer discriminated against her on the grounds of sex and family status when it refused her request to telework from home full time, Monday to Friday, for a year following the end of her year-long maternity leave in March 2013. She made the request because, as she put it in her grievance, she needed “… to change the way [she worked] because of breastfeeding.”

The evidence established that the grievor was a spectrum management officer (“SMO”) working for the Spectrum Management Operations Branch of Industry Canada.

Industry Canada’s Spectrum Management Operations Branch supervises and manages the radio frequency spectrum in Canada. Radio frequencies are regulated in Canada as a natural resource. Users of the radio spectrum — such as radio stations, police and fire services, marine and airplane operators, and so on — are issued licences for the frequencies they use. The use of such frequencies is administered, monitored and supervised by various Spectrum Management Operation Branches across Canada. SMOs work within each branch. Their responsibilities include reviewing applications for using particular frequencies, issuing licences for that use, and managing and resolving radio interference that sometimes develops between those using various frequencies. The administrative portion of an SMO’s duties is generally office work conducted out of a regional office. However, resolving frequency conflicts often involves field or road work in which an SMO visits the licensees, uses specialized equipment to identify the source of the interference and works to remedy the problem

The grievor was an SMO classified in the EL (Electronics) Group at level 5. For many years, she worked out of the Burlington office. She started working with the employer at the EL-01 level in January 2003 in the CWDO. She first worked under the supervision of an EL-05, among other things handling communication and site inspection duties. She moved up to the EL-02 level by April 2003 with the same duties. She then moved to the EL-03 level, at which point she was carrying out less-complex site inspections on her own. At that point, her duties also included evaluating proposals from clients and service providers for mobile radio licences. By 2005, she had reached the EL-05 level, working, in her words, “pretty much on [her] own, doing radio site inspections and investigating radio interference cases.”

According to the evidence, it appeared that in the late 1990s and early 2000s, the growing move to paperless offices, along with improvements in technology, internet access, virtual private networks and a move to client appointments rather than “walk-ins” meant that the employer had begun to recognize the possibility of providing telework arrangements for some of its employees. In such cases, employees could perform some of their work in other government offices closer to their homes, or indeed work out of their homes, for part of their regular workweek. It appeared that the employer created a telework policy by December 1999, if not earlier. Industry Canada put a telework policy into effect in 2003. SMOs who were permitted to telework could work for part of the workweek out of their homes, or other government offices closer to their homes. Those on compressed workweeks could work their regular hours, but spread them over four rather than five days.

The grievor was on maternity leave for a year between March 2012 and March 2013. She breastfed her new child. As the year wore on, she decided that she would like to continue breastfeeding for another year following her return-to-work date in March 2013.

On November 27, 2012, she emailed the employer to ask that her desire to continue breastfeeding be accommodated by way of permitting her to telework five days per week for a year, as of March 2013. She noted as follows: “In order to facilitate this, I would need to have my work duties modified to such that I can nurse him [her child] at 8:00 am. 12:00 pm and 2:30 pm.”

The grievor eventually weaned her son and returned to work full-time as of October 1, 2013. Between March 28 and October 1, she used a combination of leave without pay and vacation, gradually edging back to full-time work on October 1. During that period, the parties continued to negotiate over how the employer might accommodate the grievor’s desire to continue breastfeeding her son.

Issues and Arguments

The grievor’s representative submitted that employment policies or requirements that had an adverse impact on a woman’s decision to breastfeed her child could be considered discrimination on the basis of either or both sex or family status. It was discrimination on the basis of sex in that only women could breastfeed. It was discrimination on the basis of family status in that breastfeeding stemmed from a woman’s status as a parent with obligations and responsibilities with respect to the care and nourishment of her child.

The grievor’s representative further submitted that breastfeeding was an immutable or constructively immutable characteristic of a woman’s gender (in that only women can breastfeed). He emphasized that the decision to breastfeed was not simply a matter of personal choice. The choice to breastfeed was made on the birth of the infant, and once made, became an aspect of the mother’s legal obligation to nourish her child. Since it was part of the woman’s legal obligation, as a parent, to nourish her child, that obligation could not be adversely affected by an employer without being considered prima facie discriminatory on the basis of sex and, indeed, of family status.

For its part, the employer argued that the grievor’s decision to breastfeed was a “personal choice” rather than a legal obligation. The employer further argued that the employee had failed to make reasonable efforts to meet those childcare obligations through reasonable alternative solutions. Specifically, counsel for the employer submitted that the “legal responsibility” of a parent in a case like this is the obligation to provide nourishment to his or her child. That obligation is engaged in breastfeeding cases only if the child has some medical need that can be satisfied only in that fashion. If not, then breastfeeding cannot by itself satisfy the condition.

Decision

In concluding that discrimination on the basis of breastfeeding, if it is discrimination, is discrimination on the basis of family status rather than of sex or gender, Board Member Richardson wrote the following:

[150] I acknowledge that the ability to breastfeed — to lactate — is a physical condition that is “an immutable characteristic, or incident of gender” in the same way that pregnancy is. But breastfeeding is different. It is a subset of and an expression of a larger complex of factors stemming from the relationship between a parent and an infant.

[152] All of this is to suggest that breastfeeding is as much, if not more, an expression of “family status” — that is, the relationship between a parent and a child — as it is of gender. It recognizes that breastfeeding — that is, the decision to nourish an infant and bond with it by way of breastfeeding — is not “immutable.” It is instead a choice — a choice mediated by a variety of physical, personal and social factors. It may be a choice heavily weighted in favour of breastfeeding (particularly in the early weeks or months of an infant’s life), but it is nevertheless a choice about how that relationship is to be mediated. Stating this also recognizes that the ability to mesh work with breastfeeding will alter and shift as the child ages and as the parent’s personal and social situation changes over that time.

[153] In short, breastfeeding is a function of a balancing of various personal choices and circumstances that flow from a relationship between two individuals (parent and child), the nature of which evolves over time and as the family unit grows or shrinks in size and composition. It may be a choice that is to be encouraged — even strongly encouraged — by society, but it is not an “immutable” characteristic of gender.

In setting out what should be the parameters for a prima facie test for discrimination, Board Member Richardson wrote the following:

[172] Being in a family carries with it certain basic personal obligations and costs that any person would in ordinary course shoulder himself or herself. To adopt the formulation of the test set out in Hoyt and Johnstone without recalling the actual facts from which it sprang is to suggest that family status always trumps the obligations of work and always triggers the duty to accommodate. Such a result, as noted above in Johnstone [FCA], would be to trivialize human rights legislation. As if not more importantly, it would be in practice unworkable. It would mean that an employee with existing work obligations could require the employer to change those obligations for him or her simply through the personal decision to have a child or to raise or nurture that child in a particular way. Given the almost infinite variety of the modern family, the result could be the Balkanization of the workplace as each employee established his or her own personal accommodation tailored to his or her own family situation.

[174] All these decisions came down on the side of a prima facie test that required of the complainants something more than simply an adverse impact on their family statuses.

[175] In my respectful opinion, a close reading of both the Federal Court decision in Attorney General of Canada v. Johnstone and CHRT, 2013 FC 113 (CanLII) and the Federal Court of Appeal decision in the appeal from that decision… reveal a recognition of the difficulties associated with a low threshold. Both in my view suggest a threshold higher than that urged upon me by counsel for the grievor. Justice Mandamin in the lower court said that the test was “whether the employment rule interferes with an employee’s ability to fulfill her substantial parental obligations in any realistic way” see paragraphs 125 to 128. The Federal Court of Appeal bridged the apparent gap between the Johnstone and Campbell River tests in a slightly different – but no lesser - manner by starting with the observation that the test was “flexible and contextual” at paragraphs 82 and 83. It went on to find that what was required to satisfy a prima facie case had to take into account “… the particular nature of the prohibited ground at issue”; see paragraph 85. That being the case, the test in the case of family status discrimination had to take into account the following fact (at paragraph 88):

Normally, parents have various options available to meet their parental obligations. Therefore, it cannot be said that a childcare obligation has resulted in an employee being unable to meet his or her work obligations unless no reasonable childcare alternative is reasonably available to the employee. It is only if the employee has sought out reasonable alternative childcare arrangements unsuccessfully, and remains unable to fulfill his or her parental obligations, that a prima facie case of discrimination will be made out.

[178] Accordingly, I am satisfied as a result that the test to be applied in a case like the one before me is the one enunciated by the Court in FCA-Johnstone and that that test requires more than has been submitted by counsel for the grievor. It is one that focuses on the particular facts of the case within the context of the particular family. It is one that looks for a serious interference with a substantial obligation that arises only after the grievor has exercised his or her due diligence to find a solution that does not involve the employer. And it is one that is triggered only after the grievor’s efforts have proven unsuccessful.

As to whether a prime facie case had been made in this case, Member Richardson considered the four-part test set out by the Federal Court of Appeal in Johnstone and noted the following with respect to the criterion that, “the childcare obligation at issue engages the individual’s legal responsibility for that child, as opposed to a personal choice”:

[181] … a parent’s legal responsibility is to nourish his or her child. How a parent fulfills that responsibility is a question of choice. Breastfeeding is one such choice, but it is not the only one. Sometimes the range of choices may shrink to one — for example, when the physical needs or illnesses of the child… dictate that nourishment be supplied by way of breastfeeding. In such cases, the choice is no longer a choice, it is a legal responsibility. But in the case before me, there was no evidence to suggest that the grievor’s choices were so restricted. Her child was one year old. There was no evidence of any physical condition or illness that made breastfeeding a necessity. Indeed, on the grievor’s own evidence, the child was — or at least was to be — in daycare. Such evidence goes no further than establish that the grievor wanted — chose — to continue breastfeeding her child after he reached the age of one. It does not establish that her choice amounted to a legal responsibility.

Perhaps most fatal to the application was the grievor’s failure to satisfy the third criterion of the Johnstone test, i.e. that “she has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions”. On this point Member Richardson noted the following:

[183] There was at least one “reasonable alternative” solution to teleworking five days per week that would have enabled the grievor to maintain the breastfeeding schedule she said she wanted to protect. The grievor’s evidence was that she had located an available daycare spot that was close to the Burlington office. The fact that, as the grievor said, she “would be working to just cover the cost of daycare” does not alone establish that it was not a reasonable alternative. Life — whether alone or with family dependents — and the choices associated with it always entail certain costs that one works to cover. Moreover, such choices are generally the result of a cost-benefit analysis that includes but is not always restricted to their economic costs. The fact then that one might have to work to cover the cost associated with a particular choice is not in and of itself sufficient to make that choice unreasonable. The situation might have been different in this case had the cost of the daycare been so disproportionate that it would have adversely affected the ability of the grievor and her spouse to provide the other necessities of life. But there was no evidence to that effect.

In the result, the grievance was dismissed.

Commentary

There is a lot to unpack in the Flatt decision. Central to the decision was the decision of the Federal Court of Appeal in Johnstone, which was summarized on this blog in the post Employers Must Accommodate Parents - What It Means.

To begin, I have no concerns with Board Member Richardson’s articulation of the test in Johnstone. It is important to remember that this case concerned the adjudication of a labour grievance by the Public Service Labour Relations and Employment Board. While the Canadian Human Rights Act was engaged and the Canadian Human Rights Tribunal filed written submissions, this was not, strictly speaking a human rights case.

On the law, then, Board Member Richardson did an excellent job. One presumes that he was aided in part by the very component counsel appearing before the Board.

With respect to the application of the facts to the law, I think where there is going to be debate is with respect to the finding in paragraph 181 that “breastfeeding is one choice” among many. True, there are a variety of ways by which a child may be nourished. However, to trivialize a woman’s (indeed a family’s) decision to nourish a child through breastfeeding, whether alone or in concert with other forms of nourishment, to a “choice”, the consequences of which must be suffered by that woman, is to miss the point. Respectfully, I do not think the analysis on this point reached the proper conclusion.

As to whether the decision as a whole was wrong, I do find myself agreeing with the Board that the grievor had options of which she should have availed herself. If the case must fail, it should fail on the third criterion of the Johnstone test alone – not on the second.

Takeaways for Employees with Labour Pains

It is important for readers to remember two things when considering this case. First, the case was decided within the context of a collective agreement. The rules governing the workplace were primarily dictated by that agreement. Second, the law being considered was the federal law, not the provincial one. As set out in more detail on our page concerning which laws apply, the Canadian Human Rights Act only applies to a very small subset of workers in Ontario. The analysis under the Ontario Human Rights Code may have produced a different result.

As a result, the takeaway for employees with labour pains is that if you find yourself in a situation where you are seeking, as one of my friends put it legal “support and encouragement” for your decision to feed your child by way of breastfeeding and your employer is giving you a hard time, it may be prudent to speak with an experienced employment lawyer.

The professional, experienced and cost-effective employment lawyers for employees at Ottawa's Kelly Santini LLP would be happy to be of service to you.

Takeaways for Employers with Labour Pains

Again, it is important to note that the employer in this case was Treasury Board, i.e. the federal government. Few employers in Canada are as large or diverse as the federal public service.

Accommodation of human rights issues is always contextual, and as the Flatt decision demonstrates, not all requests for accommodation must be satisfied. However, in saying that it is very important for employers to note that the law does require employers to at least consider the ways by which an employee’s request can be accommodated. On this point employers would be prudent to consider what the Supreme Court of Canada said in the case of Moore v. British Columbia (Education), 2012 SCC 61, a summary of which can be found in the post School District Learns Lesson in Accommodation.

If you are an employer in Ontario and are looking for experienced, pragmatic, and honest legal advice with respect to your workplace issues, the professional, experienced and cost-effective employment lawyers for employers at Ottawa's Kelly Santini LLP would be happy to be of service to your business or organization.

Contact Me

To reach the author of this blog, Sean Bawden, email sbawden@kellysantini.com or call 613.238.6321 x260. You may also use the contact box at the top of this page.

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As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.

Sean Bawden, publisher of Labour Pains, can be reached by email at sbawden@kellysantini.com or by phone at 613.238.6321.

Sean P. Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP. He is also a part-time professor at Algonquin College teaching Trial Advocacy for Paralegals and Small Claims Court Practice.



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