I most respectfully submit they did.
A unanimous panel of the Federal Court of Appeal consisting of two female judges dismissed an application for judicial review by a mother who sought to assert her right to accommodation under the Canadian Human Rights Act in order to breastfeed her child during working hours. The court applied the test enunciated by the Federal Court of Appeal in determining a prima facie case of discrimination on the basis of family status in Canada (Attorney General) v. Johnsonte 2014 FCA 110 and determined that the mother failed to establish a prima facie case of discrimination in her case on the basis of the second requirement in that test, namely, "that the childcare obligation at issue engages the individual's legal responsibility for that child, as opposed to a personal choice."
[35] 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.
[38] Before concluding, I must make one final comment. 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 a 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.
[34] Here, such information about the young infant is absent from the record but for a medical note from Doctor Joesphine Smith, stating that she supports the applicant's choice to continue breastfeeding her child for a second year. (applicant's Record, Tab 10 at page 167, note of December 18, 2012) 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. (ididem, Tab 18 at page 191, note of May 28, 2013). 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 she felt that her young son's immune system would benefit from breastfeeding (ididem, Tab 11 at page 168, e mail of January 25, 2013)
Commentary:
If we are ever going to move away from mere lip-service to the concept and actualization of equality for women in the workplace we must first and foremost recognize and accept that social norms and stereotypes are so engrained and pervasive in our consciousness that mere representation of women on the Bench will not on its own bring about substantive equality to women in the workplace. Political correctness can score one political points but it can never bring about equality
in the absence of a commitment to alter societal thinking on these issues.
This case brings back vivid memories of my time as a student-at-law. I was handed a file to prepare for an arbitration hearing in which the employer decided to deny a woman of childbearing age who had suffered two previous miscarriages and was advised by her doctor to take bed rest until the fetus was properly attached and the risk of miscarriage lessened only to be denied sick pay. My job was to research the arbitral jurisprudence for the employer. I researched the law and the law did not support the employer. When asked by a manager what my view was I candidly told him to pay the lady you can not win this. Following that opinion everyone in the office referred to me as
"the socialist lawyer." The employer's answer to my opinion was to have a female lawyer argue the case. The case was heard and decided and the advice I gave them turned out to be sound - pregnancy is not an illness - however complications arising from or related to pregnancy are.
Here is the decision. Have a read and tell me what you think. Enjoy !
CORAM:
|
TRUDEL J.A.
SCOTT J.A. GLEASON J.A.
|
BETWEEN:
|
LAURA MARIE FLATT
|
Applicant
|
and
|
ATTORNEY GENERAL OF CANADA
|
Respondent
|
Heard at Ottawa, Ontario, on October 6, 2015.
Judgment delivered at Ottawa, Ontario, on
November 10, 2015.
REASONS FOR JUDGMENT BY:
|
TRUDEL J.A.
|
CONCURRED
IN BY:
|
SCOTT J.A GLEASON J.A.
|
CORAM:
|
TRUDEL J.A.
SCOTT J.A. GLEASON J.A.
|
BETWEEN:
|
LAURA MARIE FLATT
|
Applicant
|
and
|
ATTORNEY GENERAL OF CANADA
|
Respondent
|
REASONS FOR JUDGMENT
TRUDEL J.A.
[1] This is
an application for
judicial review from
a decision of the
Public Service Labour Relations
and Employment Board
(Board), dismissing a grievance of
Laura
Marie Flatt (applicant) against her employer, the Treasury Board
of Canada (employer).
[2] The Board’s decision,
penned by Board
member Augustus Richardson, is dated November 13, 2014 and bears the citation
2014 PSLREB 02.
[3] Following
her one-year maternity leave, the applicant requested permission to telework in order to continue breastfeeding
her third child. Despite various exchanges,
the parties failed to establish a suitable work
schedule that would meet both their needs.
As a result, the applicant filed a grievance claiming
that the
failure to accommodate
was discriminatory
on the basis of
sex and
family status, contrary to the Canadian
Human Rights Act, R.S.C. 1985,
c.H-6 and the collective agreement (see
the applicant’s
individual grievance presentation, applicant’s Record, Tab B-5 page 145). The grievance was refused at every level up to this Court.
[4] Having carefully reviewed the
Board’s decision and considered the
parties’ written and
oral submissions, I
propose to dismiss this application for judicial review. I have not
been persuaded that the
Board
committed legal errors
or any other errors warranting our
intervention.
[5] The Board
aptly summarized the facts
of this case.
They
are uncontested and well documented.
For our purposes, it
suffices to know that the
applicant is a spectrum management
officer. She works
full-time within the
Spectrum Management Operations Branch of
Industry Canada, which supervises and manages the radio
frequency spectrum in Canada.
In April 2007,
she became pregnant and went on maternity leave in September 2007. She returned from maternity leave in September
2008. In January 2009,
she requested to telework out of her home
on Thursdays. Her request
was accepted and she continued
with this arrangement until September 2009.
[6] In September 2009, the
applicant went
on maternity leave
again. She
returned to work in September
2010. Although the
arrangement differed, she
once again received her employer’s
permission to telework out of her home, at least from April 2011 to
March 2012.
[7] The applicant
commenced her
one-year maternity leave for
her third child in
March 2012.
She breastfed her child. As the year
wore on, the
applicant decided
that she would like to
continue breastfeeding her child for another year, that is until March 2014. To that
end, she approached her employer, in November 2012, and sought permission
to telework full-time
from her home between 6:00 and 14:00.
The
employer denied this request because, inter alia, it was not “operationally
feasible” (email
of January 25, 2013, applicant’s Record, Tab C-4 at page 207).
[8] The applicant
ended up asking for
an extended leave without pay
for the period running
between March 4, 2013 and June 28, 2013 with a return to work on July 1st (email of January 27, 2013, ibidem at page 212). Her request was accepted.
[9] Nonetheless,
the applicant
continued to seek a teleworking arrangement.
In early March 2013, several emails were exchanged between
the
parties. The applicant explored
the possibility of finding a daycare close to
her workplace. This would permit
her
to continue breastfeeding
her child while working physically
in the office. She
proposed a schedule whereby she would
telework two days per week. On the remaining three days, when she would be in
the office, she would take
two 45 minutes breaks to attend the
daycare center and
breastfeed her
child. It
must be understood that with this proposal, the applicant
wanted the breastfeeding time to be
included in her paid hours and
did
not wish to forfeit her
lunch
breaks. She only agreed to count her
two 15 minutes paid
coffee breaks towards the breastfeeding
time.
[10] The employer
generally agreed with this proposal
but flagged two
issues: (1)
the
hours of work were to
total 37.5 hours per week, excluding
lunch breaks and the time associated
to breastfeeding; and (2)
the arrangement
would be for one
year (email of March 4,
2013, ibidem
at page 220).
[11] The applicant
did not seek to address
her employer’s concerns but
rather abandoned this possible arrangement proposing a new one where she would telework from her home two
full
days per week and
work in the office the other three days, from 10:00
to 14:30, teleworking
again from her
home
on those days
from
6:00 to 8:30.
[12] Having considered
this new
request in light
of the relevant Duty
to Accommodate Policy, the employer
offered the applicant
three options:
a)
That the
[applicant] work from home one day a week, and in the
Burlington office four days
a week, working a minimum
of 7.5 hrs a day when in
the Burlington office;
b)
That the
[applicant] work part-time; or
c) That the
[applicant] continue on leave-without-pay until she feels
that her nursing is
complete.
(Board’s
reasons at paragraph 53,
reference
to Exhibits omitted).
[13] The parties
did not reach an agreement and
the
applicant reverted to her original
request
–
teleworking from her home on a full-time basis (email of April 16, 2013, applicant’s Record at page 235). This request forms the basis of her
grievance dated
March 22, 2013, in which she alleges
discrimination on the grounds of sex and family status
contrary to the Canadian Human Rights
Act and seeks the following
corrective measures:
That Management comply with my rights under the Canadian
Human Rights Act regarding “Sex and Family
Status” and that
Management respects its obligation as
prescribed in the Canadian Human Rights Commission,
Duty to Accommodate
Policy.
That I be treated in accordance with the IBEW, Local 2228 collective agreement.
That I be allowed to
work from home full
time, Monday to Friday between the
hours of 7:00 am to 3:00pm to accommodate breastfeeding my son
until March 2014.
That based on the effective
date of March 4, 2013 (my original
return to work date), I be compensated for any lost wages
and benefits that resulted due to the denial
of my request and
having to accept
leave
without pay during the
time
that an acceptable accommodation
solution could have been
arranged.
That I be made whole
again for any and all losses.
(ibidem
at page 146)
[14] In the end,
the
facts reveal that the applicant weaned her
son sooner
that she had planned to
and
returned to
work on October 1, 2013.
[15] Having considered the
grievance and
the current state
of the jurisprudence, the Board opined
that four issues needed
to be addressed:
a) Is discrimination
on
the basis
of breastfeeding discrimination on the
basis of sex or family status or both?
b) What is necessary
to establish a prima facie case of discrimination
on the basis of breastfeeding,
and did the grievor meet it in this case?
c) If the grievor
did establish a prima facie case of discrimination,
did the employer accommodate her to the point of
undue hardship?
If the grievor
did establish a prima facie case of discrimination,
did the employer accommodate her to the point of
undue hardship?
d)
If it did not, then what is the remedy?
[16] In view of my
proposed conclusion, the first two
questions will be the
focus
of my analysis. This said,
I
return
to the Board’s decision.
[17] I start by saying a few
words about the scope of the
grievance. The applicant contends that the Board’s
first error is that
it determined that the
scope of
the grievance
prevented it from
considering events that occurred after the filing of the grievance,
i.e. March 22, 2013, mostly
the on-going discussions between the parties to find a suitable arrangement
allowing the applicant to continue breastfeeding her child for another year.
[18] Indeed, it is
the applicant’s view that
the Board
confounded the
substance of the grievance
with the corrective measures she sought. More
specifically, the applicant writes at paragraphs
60-63 of her Memorandum
of Fact and Law:
60.
Moreover, contrary to the Panel’s assertion that the Applicant’s original request to telework five days per week in November of 2012 somehow limited the scope of the grievance as filed in March
of 2013, the Applicant submits that the
content of discussions between the parties before the filing of any grievance
cannot serve to limit the scope of any subsequently
filed grievance. A party
filing a grievance is simply not constrained in this way.
61. Further,
it is evident from the discussions before
and, indeed, throughout the grievance procedure, that the Applicant communicated to the employer that
while she required
a change in the manner in which she worked
to accommodate her son’s breastfeeding schedule, she
was more
than willing to
propose and consider different ways in which satisfactory accommodation could be made. The
gravamen of the grievance
was the employer’s discrimination
and failure to accommodate.
62.
The statutory duty to accommodate is an
ongoing
duty. It
does not disappear
when a grievance is
filed. Arbitrators
have held that an employer’s
potential accommodation liabilities under human rights
legislation cannot
be said to have finally crystallized when a grievance is filed.
Indeed, where one
of the issues in a grievance is management’s accommodation as required by human rights
legislation, this gives rise to an exception to the
privilege normally attached
to grievance procedure discussions. As such, it is proper to consider evidence of discussions that may have arisen post-grievance or during the grievance
procedure.
The statutory duty to accommodate is an
ongoing
duty. It
does not disappear
when a grievance is
filed. Arbitrators
have held that an employer’s
potential accommodation liabilities under human rights
legislation cannot
be said to have finally crystallized when a grievance is filed.
Indeed, where one
of the issues in a grievance is management’s accommodation as required by human rights
legislation, this gives rise to an exception to the
privilege normally attached
to grievance procedure discussions. As such, it is proper to consider evidence of discussions that may have arisen post-grievance or during the grievance
procedure.
63.
The Applicant submits that no meaningful consideration of
the employer’s accommodation efforts, or lack thereof, could have been made without regard to events that occurred following March
22, 2013. The Applicant continued
to propose a number of alternative
solutions, all of
which
were rejected by
the employer. Given the employer’s ongoing duty to accommodate, the events which occurred after March 28, 2013, ought to have been considered by the Panel.
[19] In my view, this ground of complaint cannot
succeed and
I will dispose
of it immediately.
To start
with, the Board
heard all of the evidence, including the
evidence dealing
with the parties’ negotiations
before and after the filing of the grievance. It
also noted the
employer’s objection
to the introduction of this evidence because it constituted privileged
information. The Board
allowed the evidence in on a provisional basis because it “might
be relevant” (Board’s reasons at paragraph 63). In
the
end, however, “…having
considered all the issues
and the evidence [the Board was] satisfied that the post-grievance evidence was not relevant” (Board’s reasons at paragraph 64), mostly because the
applicant’s original request in
November 2012 was
to telework from her home 5 days per week. It is the
request that ultimately
grounded the grievance that was filed in March
2013. The Board
wrote at paragraph 100
of its reasons:
It is true that between those
dates, the grievor did suggest that she might be
prepared to telework fewer days,
provided certain other changes
were made to her work
schedule. However it
remains the case that in the
end, she backed away from those
proposals and returned
to her original request in its original form. Had she
grieved simply
that she had
not been accommodated, she would have left open the
possibility of some form of accommodation other than five
days of teleworking. But that is
not
what she did. She
grieved that the
accommodation on her
breastfeeding required a specific, particular
and precise form of work.
(Board’s reasons at paragraph 100).
[20] Assessing
the scope
of the grievance and
assessing the
evidence and
affording it the weight
that it deserves is within the province of the Board.
Absent an unreasonable
determination, this Court will not intervene.
[21] Having carefully
examined the material on record,
I have not
been persuaded that the Board
erred when it concluded
that the grievance
with which it was
concerned was “…the
one that was filed, which stated that the employer failed
to accommodate the [applicant’s] desire to breastfeed her child by
permitting
her to telework five days per week” (ibidem).
The record amply supports the Board’s
view that the crux
of the grievance
is that the employer would not
accommodate the applicant so that she could work
her 37.5 hours per
week from her home.
[22] Coming back to
the
Board’s analysis of the
first issue, I note its
conclusion “…that discrimination on the basis of breastfeeding, if
it is
discrimination, is discrimination on the
basis
of family status rather
than sex or gender” (ibidem at paragraph 157).
[23] Although
the Board
acknowledges that
to lactate is
a physical condition – an immutable characteristic, it is of
the view that 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 ” (ibidem at paragraph
150).
[24] As for
the second
issue, the
Board asked itself what
was necessary to establish
a prima
facie case of discrimination on the basis
of family status. It chose
to follow the test enunciated by
this
Court at paragraph 93
of Canada (Attorney General) v. Johnstone, 2014 FCA 110, [2015] 2
F.C.R. 595 [Jonhstone]. Paragraph 93 reads as follows:
[93] I conclude from this
analysis that in order to make out a prima
facie case where workplace discrimination on the prohibited
ground of family status
resulting from childcare
obligations is alleged, the
individual advancing the claim
must show (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.
[25] Having so concluded, the
Board found that the
applicant’s evidence fell short
on
the second and third factors of the Johnstone
test (Board’s
reasons at paragraphs
182-183). As a result, the
Board could have stopped its analysis.
But in case
it erred in deciding that the
applicant had not established a prima
facie case of discrimination, it went on asking itself whether
the employer accommodated the applicant to the point of undue hardship.
In short, its answer
was yes. As stated earlier, in
view of my conclusion it will not
be necessary to address this particular
issue.
[26] Whether
sex or family status are
alleged as
grounds of discrimination,
complainants are required to present first a
prima facie case disclosing
that they have a
characteristic protected
from
discrimination, that they encountered an adverse impact with respect
to employment and that
the protected characteristic was a factor
in
the adverse impact. If
this
demonstration is
successful, the employer must show that the
practice or policy is a bona
fide occupational requirement and that those affected
cannot be accommodated without undue hardship in
order to rebut the allegation (Johnstone
at paragraph 76).
[27] At the
hearing of this application, both
parties agreed as to
how to
apply this test. The issue
of prima facie discrimination should be decided in light
of the factors enunciated in Johnstone,
no matter
the basis on which the alleged
discrimination is examined, i.e., sex
or family status. I agree.
[28] This said, these
factors should not
be applied blindly without regard
to the particular
circumstances of the applicant whose situation differs greatly
from that of Ms. Johnstone.
The application of the facts to this test
is
dispositive of the grievance keeping in
mind
that the test
that concerns prima facie discrimination “is necessarily flexible and contextual because it is applied in cases with many different
factual situations involving various grounds of discrimination”
(Johnstone at paragraph 83). The Johnstone
factors should also be applied contextually.
[29] Indeed,
Ms. Johnstone had complained that
her employer had
discriminated against her
on the ground of family status by
refusing
to accommodate
her childcare needs through scheduling arrangements. Ms. Johnstone’s
work schedule, as well as that of her husband, was
built around a rotating shift
plan with no predictable patterns such that neither
could provide the necessary childcare on a reliable basis. In
other words, Ms. Johnstone was unable to meet her parental
legal obligation to care
for and protect her
child. Under these
circumstances, she easily
met the two first factors of the Johnstone
test: (a) the child
was under
her care and
supervision; and (b) she
had the legal obligation
to care for her
child. This was
not
a personal choice.
[30] She also met
the last two
factors of the Johnstone test: (c)
she had made reasonable efforts to meet her
legal obligation through reasonable alternative solutions, and (d) her workplace schedule interfered
substantially with that obligation.
[31] In the case at bar,
there can be no doubt that
the applicant’s young son
is under her care
and supervision. But I have not
been persuaded that the
applicant has met her burden on the
second and third factors. The applicant has been arguing that the equivalent for her of
Ms.
Johnstone legal obligation to care for her child is her “legal obligation to nourish her son by breastfeeding him”
(applicant’s Memorandum of Fact and Law
at paragraph 96)
[32] 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.
[33] 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.
[34] 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
(applicant’s Record, Tab 10 at page 167, note of December
18,
2012). 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
(ibidem, Tab 18 at page 191,
note of May 28, 2013). 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 (ibidem, Tab 11 at page 168, email of
January
25, 2013)
[35] 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.
[36] Moreover,
the applicant has made
no reasonable effort to find
a viable solution. As mentioned earlier, she
never addressed the
employer’s reasonable concerns
with her
proposal
to leave the office twice a day for 45 minutes
to breastfeed her child during
paid hours and simply
reverted to her original position. She
does not meet the
third factor of Johnstone.
[37] I therefore
conclude, as
did
the Board, that the applicant
has not made her
case
of prima facie discrimination
and that the Board’s
application of the facts to
the Johnstone factors
was reasonable. I need not
discuss the second
stage of the test
for discrimination dealing with the employer’s answer.
[38] Before concluding,
I must make
one final comment. 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.
[39] Consequently, I propose
that this application
for judicial review
be dismissed with costs in the amount of
$4600 inclusive of disbursements and
taxes.
Johanne Trudell J.A.
.
“I agree.
A.F. Scott J.A.”
“I agree.
Mary J.L. Gleason J.A.”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET:
|
A-557-14
|
STYLE OF CAUSE:
|
LAURA MARIE FLATT v.
ATTORNEY GENERAL OF CANADA
|
PLACE OF HEARING:
|
OTTAWA, ONTARIO
|
DATE OF HEARING:
|
OCTOBER
6, 2015
|
REASONS FOR
JUDGMENT BY:
|
TRUDEL
J.A.
|
CONCURRED IN BY:
|
SCOTT J.A.
GLEASON J.A.
|
DATED:
|
NOVEMBER 10, 2015
|
APPEARANCES:
Jennifer M. Duff
James L. Shields
|
FOR THE APPLICANT
LAURA MARIE FLATT
|
Richard E. Fader
|
FOR THE RESPONDENT ATTORNEY GENERAL OF CANADA
|
SOLICITORS OF RECORD:
SHIELDS & HUNT
Ottawa, Ontario
|
FOR THE APPLICANT
LAURA MARIE FLATT
|
William F. Pentney
Deputy Attorney General of
Canada Ottawa, Ontario
|
FOR THE RESPONDENT ATTORNEY GENERAL OF CANADA
|
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