Employee’s Request for Accommodation Amounts to a “Personal Choice” – the Facts Really do Matter

February 22, 2016

In a recent decision, the Federal Court of Appeal (the Court”) upheld a decision that found an employee who requested an accommodation in order to breastfeed her child during working hours failed to meet the test for prima facie discrimination.  The particular facts of this case lead to the Court finding that the employee’s decision to breastfeed was a “personal choice”, and not one born out of a legal obligation towards the child in question, as required by the applicable legal test.

By way of background, prior to the employee returning to work after her third maternity leave, she requested that her employer provide her with an accommodation that would allow her to telework from home on a full-time basis.  The parties had agreed to a similar arrangement, albeit it was for 1 day per week and for a shorter duration, in the past. The parties exchanged several communications and canvased various options to see if a mutually agreeable arrangement could be reached. In the end, the parties could not agree on an accommodation plan, and the employer denied the employee’s request as it was not “operationally feasible”.

As the employee was unionized, she filled a grievance claiming that the employer’s failure to accommodate her was discriminatory on the basis of sex and family status, contrary to the Canadian Human Rights Act and the collective agreement. The grievance was refused at every level up to the Court.

In reaching its decision, the Court held, inter alia that:

• the test from Johnstone applied in determining if the alleged discrimination was on the basis of sex and/or family status;
• as required by the second prong in the Johnstone test, the employee failed to evidence that breastfeeding during working hours is a legal obligation to a child in her care, and therefore the Court concluded it was, in this case, a personal choice; and
• the employee made no reasonable effort to find a viable solution, see third prong on the test in Johnstone – specifically, the employee failed to address the employer’s reasonable concerns.

The Court, however, was clear to emphasise that its decision was not a blanket statement with respect to the provision of accommodations in the workplace for breastfeeding, nor was it trivializing breastfeeding. It is important to note, as we discussed in our blog on Johnstone, that matters such as these are heavily fact driven, with each case bearing its own unique outcome.  As such, employers should approach matters of accommodation with due diligence through open dialogue and the aim of reaching a mutually agreeable solution, up to the point of undue hardship.

Flatt v. Canada (Attorney General), 2015 FCA 250 (CanLII)

---