Human Rights Office

Human Rights Office
Human Rights Office

Flatt v. Treasury Board (Department of Industry), 2014 PSLREB 2 (CanLII)

Summary:

In this case, the applicant, Laura Flatt, worked as a full-time supervisor in the Spectrum Management Branch of Industry Canada. At the completion of her third maternity leave, Ms. Flatt wished to continue breastfeeding her child and therefore sought accommodation from her employer in an effort to continue breastfeeding. No medical reasons were provided for the request. In her two previous maternity leaves, Ms. Flatt and her employer were able to reach amicable agreements which allowed the applicant to continue breast feeding beyond her maternity leave. These previous agreements involved allowing the applicant to preform part of her work from home via a teleworking arrangement. In relation to this particular request, Ms. Flatt and her employer exchanged a number of different requests. In these requests the applicant explored the possibility of finding a daycare close to her work, therefore being able to continue to breastfeed her child while also being physically in the office. Ms. Flatt proposed a schedule where she would telework two days per week and on the other days she would attend the daycare near her work on two 45 minute breaks. Ms. Flatt wanted the breastfeeding time to be included in her paid hours, not wanting to forfeit her lunch breaks and only willing to count her two 15 minute paid coffee breaks towards her breastfeeding time. In relation to this proposal the employer disagreed and suggested alternatives. Ultimately the employee, Ms. Flatt, disagreed with the employer’s proposals and suggested that in order to accommodate the breastfeeding of her child she would need to telework five days per week. In the end, the applicant and the employer reached an impasse and a grievance was filed. In this case, it was decided that Ms. Flatt did not establish a prima facie case of discrimination on the basis of family status. This decision was made using the four elements of the test set out in FCA-Johnstone. In this case, Ms. Flatt failed to meet the second and third requirements outlined in the FCA-Johnstone test (see rationale below). In this case the concept of “ personal choice” in relation to breastfeeding was a driving factor in the decision rendered.

Question(s) to be Determined:

1.    Is discrimination on the basis of breastfeeding discrimination on the basis of sex or family status or both?

2.    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?

3.    If the grievor did establish a prima facie case of discrimination, did the employer accommodate her to the point of undue hardship?

Findings:

1.    Is discrimination on the basis of breastfeeding discrimination on the basis of sex or family status or both?

see below

2.    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?

see below

3.    If the grievor did establish a prima face case of discrimination, did the employer accommodate her to the point of undue hardship?

see below

Reasoning:

1.    In this case it was determined that discrimination based on breastfeeding was discrimination based on family status. This decision was made after reviewing a number of relevant cases (Poirier, Carewest, Cole and Coast Mountains).

In making this determination it was stated, “I acknowledge that the ability to breastfeed — to lactate — is a physical condition that is “an immutable characteristic, or incident of gender” (as noted in Brooks) in the same way that pregnancy is. But 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” (para 150).

Reaffirming the belief that discrimination on the basis of breastfeeding was discrimination on the basis of family status, it was stated “All of this is to suggest that breastfeeding is as much, if not more, an expression of “family status” — that is, the relationship between a parent and a child — as it is of gender. It recognizes that breastfeeding — that is, the decision to nourish an infant and bond with it by way of breastfeeding — is not “immutable.” It is instead a choice — a choice mediated by a variety of physical, personal and social factors. It may be a choice heavily weighted in favour of breastfeeding (particularly in the early weeks or months of an infant’s life), but it is nevertheless a choice about how that relationship is to be mediated” (para 152).

2.    As stated above the test set out in FCA-Johnstone was used in determining whether or not a case of prima facie discrimination on the basis of family status was substantiated. In this case, Ms. Flatt failed to meet the second and third requirements outlined in the FCA-Johnstone test (see below).

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 effort to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible

In relation to the second requirement it was stated, “Dealing with the second condition, a parent’s legal responsibility is to nourish his or her child. How a parent fulfills that responsibility is a question of choice. Breastfeeding is one such choice, but it is not the only one. Sometimes the range of choices may shrink to one — for example, when the physical needs or illnesses of the child, as in Cole or Carewest, dictate that nourishment be supplied by way of breastfeeding. In such cases, the choice is no longer a choice, it is a legal responsibility. But in the case before me, there was no evidence to suggest that the grievor’s choices were so restricted. Her child was one year old. There was no evidence of any physical condition or illness that made breastfeeding a necessity. Indeed, on the grievor’s own evidence, the child was — or at least was to be — in daycare. Such evidence goes no further than establish that the grievor wanted — chose — to continue breastfeeding her child after he reached the age of one. It does not establish that her choice amounted to a legal responsibility” (para 181).

Regarding the third requirement it was stated, “Again, the evidence falls short. There was at least one “reasonable alternative” solution to teleworking five days per week that would have enabled the grievor to maintain the breastfeeding schedule she said she wanted to protect. The grievor’s evidence was that she had located an available daycare spot that was close to the Burlington office. The fact that, as the grievor said, she “would be working to just cover the cost of daycare” does not alone establish that it was not a reasonable alternative. Life — whether alone or with family dependents — and the choices associated with it always entail certain costs that one works to cover. Moreover, such choices are generally the result of a cost-benefit analysis that includes but is not always restricted to their economic costs. The fact then that one might have to work to cover the cost associated with a particular choice is not in and of itself sufficient to make that choice unreasonable. The situation might have been different in this case had the cost of the daycare been so disproportionate that it would have adversely affected the ability of the grievor and her spouse to provide the other necessities of life. But there was no evidence to that effect” (para 183).

3.    In this case it was decided that the grievor did not establish a prima face case of discrimination. It was also decided that the employer in this case had taken steps to accommodate the grievor to the point of undue hardship.

“The limitations on requests to telework were imposed as a result of difficulties the employer had experienced with it, caused in part by reductions in its staff. While some telework was still possible, it was established on the evidence that telework for five days a week for a year would exacerbate the difficulties the employer had experienced. The restriction was adopted in good faith. It was not directed at the grievor personally, nor at breast-feeding mothers in general. It applied to all employees, and was adopted in response to changes in the number of the employer’s employees – but not in the amount and nature of the work that had to be performed. Notwithstanding the employer’s inability to grant the grievor’s request to telework from home for a year, it did try within the restraints under which it was operating to accommodate her request. The employer did discuss other possible accommodations with the grievor, but she ultimately refused to yield from her original request. Both parties have a role to play in the accommodation process, and the grievor did not explain why she needed a year (or a year and a half) of telework, or why (other than the cost) she could not use a daycare closer to work” (para 187).

*In this matter Laura Flatt applied for judicial review (Flatt v. Attorney General of Canada, 2015 FCA 250 CanLII). In this case, the application for judicial review was dismissed. The rationale provided for this dismissal was “I have not been persuaded that the Board committed legal errors or any other errors warranting our intervention” (para 4).