Here’s some victory news for your Monday morning – Johnstone and Canadian Border Services (August 6,2010). Link to the decision at the very bottom of this post and press release from PSAC, Ms. Johnstone’s union, below (I’m amused by PSAC’s choice of headline – were they being ironic, or are we going to try to recapture that language?).
The decision makes good reading, since it illustrates the variety of systems which have failed to adjust to Canadian realities in terms of demographics (we need more workers!) and family economics (two incomes are the norm). There’s also an extensive discussion around the employer’s contention that childcare responsibilities are a “choice” unlike , e.g., medical conditions or religious practice (both of which are accommodated by the employer). Experts were called in and their testimony is well worth a look (around employer policies on “work life balance” and the availability of child care).
I had some of my own questions too – in this case the claimant and her spouse were both border services agents, and there isn’t much discussion of why she is bringing the case (it’s clear that his position was higher up the ranks than hers, and it’s also related to the issue of “returning to work” after giving birth to a child). But there isn’t much discussion of this kind of discrimination falling mainly on women (although you see it clearly in the expert testimony, and in the discussion of the employer’s attention to the issue).
Anyway, it’s a victory, just a limited one. It’s not a solution to work/life balance. It’s a way to keep seniority and pensions (which Ms. Johnstone would have lost if she went to the part time work her employer suggested).
One of my favourite parts of the decision was when the CBSA (canadian border services agency) suggested that Ms. Johnstone had not been diligent in seeking childcare arrangements which could accommodate shifting schedules, mandatory overtime, and overnight shifts. I wish I knew what they meant. Finding childcare to accommodate any schedule (let alone budget) is not easy. Perhaps we should all contact CBSA to find out more about this secret awesome childcare option! I kind of suspect that it is Stay at Home moms, but they tend to only offer this to their own children…. FYI: Ms. Johnstone’s partner is also a Border Services officer and they indicated they didn’t have a home which could accomodate a “nanny,” nor did they have the money for that option. [See around para 18]
Here’s the PSAC Press Release.
Human Rights Tribunal Defends Family Values
Decision supports freedom of Canadians to be parents without discrimination
OTTAWA, Aug. 6 /CNW Telbec/ – In a groundbreaking decision today, the Canadian Human Rights Tribunal found that employers cannot discriminate against their employees should they choose to become parents. Fiona Johnstone, a Canadian Border Services Officer and a member of the Public Service Alliance of Canada, convinced the Tribunal that she was a victim of discrimination based on family status.
The Canada Border Services Agency (CBSA) refused to accommodate her request for more regular hours so she could arrange for proper child care. The CBSA told her that the only way that she could care for her kids was to work part time. Fiona Johnstone was unable to obtain child care because she and her husband both worked rotating shift schedules at Pearson International Airport.
The Tribunal found that the conduct of the CBSA was willful and reckless in depriving Mrs. Johnstone of her employment opportunities. The Tribunal ordered the CBSA to pay Mrs. Johnstone for lost wages and pension benefits, as well as damages totaling $35,000.
“This is a victory for all working Canadian parents who want to give their children the care they need and at the same time progress in their careers,” said John Gordon, President of the Public Service Alliance of Canada. “Employers have the obligation to find workable solutions on a case-by-case basis so that workers like Fiona Johnstone can balance work and family.”
The Tribunal criticised the CBSA for maintaining systemic policies and practices that deprived Mrs. Johnstone and other similar individuals of employment opportunities due to their family status. As a result, the Tribunal ordered the CBSA to develop a plan to prevent further incidents of discrimination based on family status and develop policies to address family status accommodation requests.
“I am happy and relieved by the decision of the Canadian Human Rights Tribunal,” said Fiona Johnstone. “I can now move on with my career and with raising my family.”
In 2004, Fiona Johnstone filed a complaint against the CBSA arguing that its policy violates the Canadian Human Rights Act by discriminating against her based on her family status. While not every childcare need gives rise to an employer obligation to accommodate, Johnstone argued that her complicated and unpredictable schedule made it impossible to care for her children. She said that the employer had not proven that accommodating her with a more suitable shift would amount to undue hardship.