Human Rights and Accommodating Childcare Obligations

Last year, the federal courts found in favour
of Fiona Johnstone, a boarder service employee who alleged she had been
discriminated against on the basis of family status. She sought to have her
schedule changed in order to accommodate for the limited childcare available in
her area.  There was concern that this
case would “open the floodgates” for other employees to “willingly” change
their work hours to accommodate for childcare. The Federal Court of Appeal
determined that childcare is a legitimate part of family status and will be
protected. The Court then established a 4-part test to determine if future individuals
have been discriminated against on the basis of family status. The employee
must demonstrate they have made a reasonable effort to secure childcare. They
would then have to provide evidence that there are no other reasonable options
available. Essentially, they cannot state care is unavailable if a certain
childcare provider is unavailable during the hours of work. Preference of
provider is not a legitimate exception. All requests by the employee need to be
taken seriously by the employer. The employer, if proper evidence is provided,
is then obligated to accommodate these needs