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A female employee with the Industry Canada’s Spectrum Management Operations Branch filed a grievance alleging that she was discriminated against on the basis of sex and family status when her employer failed to accommodate her request to work five days a week from home so she could continue to breastfeed her one year old son. The grievance was before the Public Service Labour Relations and Employment Board[1].

The union relied on past practices by the employer in allowing telework, pointing to a 2003 policy that allowed staff to spend a portion of the week working from home to “help employees balance their work, personal and family responsibilities” but as the employer pointed out, it was also stated not to be used “as a long-term substitute for family care responsibilities”. The employee had also worked from home one day a week after she returned to work from her first maternity leave and worked from home two days a week after she returned to work from her second maternity leave. During the employee’s third maternity leave her employer underwent a review of the telework policy and concluded that it was not in its best interests and revoked the option, unless there were special circumstances such as medical accommodation, family emergency or weather conditions.

The employee, in preparing to return to work, submitted a request that she be able to work from home five days a week. It took the employer two months to reply, but ultimately it denied her request but offered her a compromise of taking an extended unpaid leave. Various proposals went back and forth between the parties. The final position of the employee was that she wanted to work from home full-time, citing the benefits of breastfeeding and a note from her doctor supporting her desire. The final position of the employer was that she could take an extended unpaid leave, work part-time or work from home one day a week.

The union argued that the failure of the employer to grant her request amounted to discrimination on the basis of sex and family status. The adjudicator strayed from previous decisions[2] in finding that if there was discrimination related to breastfeeding, it would not be a form of sex discrimination. He distinguished the ability to lactate from the choice to breastfeed (which he cited as one way to nourish a child, in addition to bottle feeding and pumping). The adjudicator found breastfeeding to be better tied to family status.

The union’s argument on the basis of family status was that breastfeeding stems from a woman’s status as a parent with obligations pertaining to the care and nourishment of her child. The union argued that this situation passed the four part test set out in Canada (Attorney General) v. Johnstone[3] in that :

(1) a child was under her care and supervision;

(2) the childcare obligation engaged her legal responsibility for the child;

(3) she made reasonable efforts to meet these obligations through reasonable alternative solutions; and

(4) the workplace rule or policy preventing her from working from home full-time interferes in a way that is not trivial or insubstantial with the fulfillment of her obligation.

The adjudicator did not agree and dismissed the grievance. He found that the employee failed on the second stage of the test in that breastfeeding was not a legal responsibility – but rather it was to nourish the child, which could be fulfilled in different ways and the choice to fulfill that responsibility by breastfeeding – was exactly that, a choice, in the absence of any physical condition or acute illness. The adjudicator also found the employee failed the third test in that she had not adequately proven that she made reasonable efforts to fulfill her obligation through reasonable alternatives. In the hearing, the employee testified that she had found a daycare close to the employer’s premise that would accommodate visits by her throughout the day to breastfeed her son. She argued that in order to exercise this option, she would be working just to cover the costs of daycare. The adjudicator found that the cost (which he found was not so disproportionate to impact the employee’s ability to provide other necessities of life to her children) does not make that option unreasonable.

The adjudicator found that no discrimination had occurred, as ultimately there was no need to breastfeed, but rather the desired choice, for which at least one alternative to working from home five days a week existed.

The union has applied for judicial review of this decision.

The adjudicator in this case made it clear that cases like this are very fact specific and a slight change in facts could change the determination as to whether discrimination occurred. For example, had either the mother or child had a medical condition where breastfeeding was more of a necessity than a choice, the outcome may have very likely been different.  I also query whether a less onerous request for accommodation had been made, whether the outcome may have been different (ex. allowing the baby at work or travel to the baby throughout the day to breastfeed). As readers will know, family status is a growing and ever changing area of human rights law. With so many new mothers in the workplace, this issue will be sure to continue to get more attention in the future.

[1] 2014 PSLREB 2 (CanLII).

[2] See for example, Poirier v. British Columbia (Ministry of Municipal Affairs, Recreation and Housing), [1997] B.C.H.R.T.D. No. 14 (QL).

[3] 2014 FCA 110 (CanLII) (FCA)

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