Ms. Johnstone was employed by the Canadian Border Services Agency (CBSA), as was her spouse. Both worked

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Ms. Johnstone was employed by the Canadian Border Services Agency (CBSA), as was her spouse. Both worked variable shift schedules. After their second child was born, Ms. Johnstone sought a fixed schedule at Pearson International Airport because finding childcare was difficult when both parents worked variable schedules.

The CBSA refused to accommodate employees' childcare obligations on the ground that it had no legal duty to do so, arguing that accommodation of childcare obligations was not required of an employer. Instead, the CBSA had an unwritten policy allowing an employee with childcare obligations to work fixed schedules, but only if the employee agreed to work part time. Part-time employees, however, enjoyed fewer employment benefits, notably with regard to pension entitlements and promotion opportunities.

Ms. Johnstone was not satisfied with the requirement to accept part-time employment, with fewer employment benefits, in return for obtaining static shifts. She filed a complaint alleging discrimination on the basis of family status contrary to sections 7 and 10 of the Canadian Human Rights Act.

The Federal Court of Appeal affirmed that family status incorporates parental obligations such as childcare obligations. Accommodation is required for parental obligations "which engage the parent's legal responsibility for the child, such as childcare obligations, as opposed to personal choices," such as choosing to enroll children in extracurricular activities.

The Court set out the following tests to be applied: [I]n order to make out aprima faciecase 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 Part of the mandate of human rights commissions is to promote knowledge of human rights and to encourage people to follow principles of equality. The prohibition of discriminatory signs and notices assists in that end. The federalCHRAgoes even further and deems it a discriminatory practice to communicate hate messages "telephonically or by means of a telecommunication undertaking within the legislative authority of Parliament." Canada's first-ever human rights complaint involving an internet hate site was filed against Ernst Zndel's internet 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.

The employer was thus required to accommodate Ms. Johnstone.

Other workers have different family obligations - some may be required to provide eldercare. In theHickscase, the Court referred to theJohnstonedecision as establishing that the ground of family status should be interpreted broadly to include family circumstances. Family circumstances encompass the eldercare obligation because failure to provide it can attract not only civil responsibility, but also criminal responsibility if not exercised properly.

how the test in this case could be applied to some people's resistance to returning to work. Do you think the test will help people with family obligations?