Childcare Obligations and Self-Accommodation in Alberta.

• Author: Tuttle, Myrna El Fakhry

Reading Time: 4 minutes

Under Alberta human rights laws, what do employees have to show in a case of family status discrimination relating to childcare obligations?

Provincial, territorial and federal human rights legislation in Canada prohibits discrimination against employees based on family status. This protection includes an employee's childcare obligations. However, the family status discrimination test has developed in different ways across Canada. And employers often do not know their duty to accommodate an employee's childcare needs is triggered.

Alberta Human Rights Act

Section 4 of the Alberta Human Rights Act (the Act) protects individuals from discrimination based on different protected grounds including family status. The Act defines family status as the "status of being related to another person by blood, marriage or adoption" (section 44(1)(f)).

Family status protections allow employees who are parents to ask for an appropriate accommodation to be able to look after their children. It also requires employers to accommodate their employees' family status needs up to the point of undue hardship.

Employees must try to find suitable childcare to adjust childcare obligations with work obligations. However, if no reasonable options for childcare are available, employers must modify work requirements to allow employees to manage childcare obligations. Modifications must not constitute undue hardship for the employers.

The big question is: to prove discrimination, do employees have to demonstrate they made reasonable efforts to meet their childcare obligations before requesting accommodation? We call this the "obligation of self-accommodation".

The Test for Discrimination

In the 2012 case of Moore v British Columbia (Education), the Supreme Court of Canada (SCC) established a test for prima facie discrimination in human rights cases (at para 33). The complainant must prove the following:

1. the complainant has a characteristic protected from discrimination,

2. the complainant experienced an adverse impact, and

3. the protected characteristic was a factor in the adverse impact.

The SCC stated:

Once a prima facie case has been established, the burden shifts to the respondent to justify the conduct or practice, within the framework of the exemptions available under human rights statutes. (At para 33)

In the 2014 case of Canada (Attorney General) v Johnstone, the Federal Court of Appeal (FCA) extended the general test for discrimination...