Earlier this year I wrote about a decision of the Public Service Labour Relations and Employment Board (“PSLREB”), in which Member Augustus Richardson held that an employee’s work requirements that impacted on that employee’s breastfeeding schedule did not constitute discrimination on the basis of either sex or family status. See: Employers Need Not Accommodate Employees “Choice” to Breastfeed - PSLREB.
Now the Federal Court of Appeal has judicially reviewed that decision and a panel of three judges (two women and one man) upheld it.
In its decision rendered November 10, 2015, (Flatt v. Canada (Attorney General), 2015 FCA 250 (CanLII)), the Federal Court of Appeal upheld the decision that the employee’s decision to breastfeed her child was a “personal choice”, holding specifically at paragraph 35 of its reasons for decision that, “Breastfeeding during working hours is not a legal obligation towards the child under her care. It is a personal choice.”
The facts of the case are as set out in my earlier post and in the court’s reasons for decision. In short, the Applicant, 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.”
In finding that the applicant had not been discriminated against on the basis of sex or family status the Honourable Justice Johanne Trudel directed her attention to the four factors necessary to establish a prima facie case of discrimination on the basis of family status. Those factors, as enumerated by the Federal Court of Appeal in the case of Canada (Attorney General) v. Johnstone, 2014 FCA 110 (CanLII),  2 F.C.R. 595 are as follows: (i) that a child is under his or her care and supervision; (ii) that the childcare obligation at issue engages the individual’s legal responsibility for that child, as opposed to a personal choice; (iii) that he or she has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible, and (iv) that the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation.
In finding that the Applicant had failed to satisfy the second criterion, Justice Trudel wrote the following:
 Here, this comparison is inapt. I accept that there could be cases where breastfeeding is seen as part of a mother’s legal obligation to care, and more precisely, to feed her child. As a result, I also accept the applicant’s position that breastfeeding can fall under both prohibited grounds of discrimination. Here, and without adopting all of its reasoning, I can find no error in the Board’s ultimate conclusion that Ms. Flatt was breastfeeding her child out of a personal choice and that discrimination on that basis, if it was discrimination, was discrimination on the basis of family status. I do not share the applicant’s view that the Board misapprehended Johnstone and misapplied the Johnstone factors. I need not further discuss the Board’s analysis of case law dealing with the question of whether work requirements that impact an employee’s breastfeeding schedule constitute discrimination on the basis of sex or family status.
 It seems to me that to make a case of discrimination on the basis of sex or family status related to breastfeeding, an applicant would have to provide proper evidence, foreseeably divulging confidential information. For example, such information may address the particular needs of a child or particular medical condition requiring breastfeeding; the needs of an applicant to continue breastfeeding without expressing her milk; and the reasons why the child may not continue to receive the benefits of human milk while being bottle-fed. This list of examples, of course, is not exhaustive. The purpose of such evidence would be to establish that returning to work at the workplace is incompatible with breastfeeding.
 Here, such information about the young infant is absent from the record but for a medical note from Doctor Josephine Smith, stating that she supports the applicant’s choice to continue breastfeeding her child for a second year. A second note states that due to the applicant’s inability to pump her milk, breastfeeding should occur twice over a 8-hour period to ensure that the milk supply is maintained. The applicant also wrote in one of her emails that she wanted to breastfeed the child past her one-year maternity leave because her second child had had health issues and she felt that her young son’s immune system would benefit from breastfeeding.
 Having carefully examined the record, I conclude that the applicant’s evidence does not meet the second factor of Johnstone. In her particular circumstances, breastfeeding during working hours is not a legal obligation towards the child under her care. It is a personal choice.
Before concluding, Justice Trudel felt implored to make one final comment, which was the following:
 I do not wish these reasons to be understood as trivializing breastfeeding. The medical profession and numerous health organizations encourage mothers to breastfeed babies, praising, inter alia, the benefits of human milk on the immune system of young children. The applicant chose to breastfeed her children and respect must be had for her decision. This case is not about that choice but rather about the difficulties of balancing motherhood and career. It is about balancing the rights of mothers and that of employers having regard to the basic principle that one must be at work to get paid. The test for establishing prima facie discrimination is well entrenched in Canadian jurisprudence. In the case of breastfeeding, the onus is on working-outside-the-home mothers to make a prima facie case of discrimination. Unfortunately in this case, the applicant failed.
In the result the application for judicial review was dismissed, with costs of $4,600 inclusive of disbursements and taxes awarded against Ms. Flatt.
What happened? In short, the court, while lauding Ms. Flatt’s decision to breastfeed her child saw the decision as a personal choice and nothing higher. As a result, given the articulation of the test for discrimination, where “choices” don’t ‘cut it’ the court was unable to find discrimination.
Takeaways for Employees with Labour Pains
What does this mean for other nursing mothers? It is important to note what Justice Trudel said in paragraph 38 of her reasons for decision: Flatt does not close the door on the possibility that failing to accommodate breastfeeding can constitute discrimination; rather in order to succeed in such an argument the applicant is going to need to demonstrate why breastfeeding is necessary for that individual and therefore more than simply a “choice.” In that respect, individual medical evidence will likely be necessary – unless the needle moves significantly within the epidemiological literature.
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.
To reach the author of this blog, Sean Bawden, email email@example.com or call 613.238.6321 x260.--
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 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.