Labour Pains

Labour Pains

An employment law blog for employers and employees. Published by Sean Bawden of Kelly Santini LLP. T. 613.238.6321 | sbawden@kellysantini.com | www.kellysantini.com

Decision to Breastfeed a “Personal Choice”, which Need Not be

Accommodated: Federal Court of Appeal

Earlier this year I wrote about a

decision of the Public Service

Labour Relations and

Employment Board

(“PSLREB”), in which Member

Augustus Richardson held that

an employee’s work

requirements that impacted on

that employee’s breastfeeding

schedule did not constitute

discrimination on the basis of

either sex or family status. See:

Employers Need Not

Accommodate Employees

“Choice” to Breastfeed -

PSLREB.

Now the Federal Court of

Appeal has judicially reviewed

that decision and a panel of

three judges (two women and

one man) upheld it.

In its decision rendered

November 10, 2015, (Flatt v.

Canada (Attorney General),

2015 FCA 250 (CanLII), the

Federal Court of Appeal upheld

the decision that the employee’s

decision to breastfeed her child

was a “personal choice”,

holding specifically at

paragraph 35 of its reasons for

decision that, “Breastfeeding

during working hours is not a

legal obligation towards the

child under her care. It is a

personal choice.”

Some people are going to

disagree.

FACTS

The facts of the case are as set

out in my earlier post and in the

court’s reasons for decision. In

short, the Applicant, Ms. Flatt,

grieved that her employer

discriminated against her on the

grounds of sex and family status

when it refused her request to

telework from home full time,

Monday to Friday, for a year

following the end of her year-

long maternity leave in March

2013. She made the request

because, as she put it in her

grievance, she needed “… to

change the way [she worked]

because of breastfeeding.”

DECISION

In finding that the applicant had

not been discriminated against

on the basis of sex or family

status the Honourable Justice

Johanne Trudel directed her

attention to the four factors

necessary to establish a prima

facie case of discrimination on

the basis of family status. Those

Labour Pains

Labour Pains

An employment law blog for employers and employees. Published by Sean Bawden of Kelly Santini LLP.

T. 613.238.6321 | sbawden@kellysantini.com | www.kellysantini.com

factors, as enumerated by the

Federal Court of Appeal in the

case of Canada (Attorney

General) v. Johnstone, 2014

FCA 110 (CanLII), [2015] 2

F.C.R. 595 are as follows: (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 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.

In finding that the Applicant

had failed to satisfy the second

criterion what Justice Trudel

wrote was the following:

[32] Here, this comparison is inapt. I accept that there could be cases where breastfeeding is seen as part of a mother’s legal obligation to care, and more precisely, to feed her child. As a result, I also accept the applicant’s position that breastfeeding can fall under both prohibited grounds of discrimination. Here, and without adopting all of its reasoning, I can find no error in the Board’s ultimate conclusion that Ms. Flatt was

breastfeeding her child out of a personal choice and that discrimination on that basis, if it was discrimination, was discrimination on the basis of family status. I do not share the applicant’s view that the Board misapprehended Johnstone and misapplied the Johnstone factors. I need not further discuss the Board’s analysis of case law dealing with the question of whether work requirements that impact an employee’s breastfeeding schedule constitute discrimination on the basis of sex or family status. [33] It seems to me that to make a case of discrimination on the basis of sex or family status related to breastfeeding, an applicant would have to provide proper evidence, foreseeably divulging confidential information. For example, such information may address the particular needs of a child or particular medical condition requiring breastfeeding; the needs of an applicant to continue breastfeeding without expressing her milk; and the reasons why the child may not continue to receive the benefits of human milk while being bottle-fed. This list of examples, of course, is not exhaustive. The purpose of such evidence would be to establish that returning to work at the workplace is incompatible with breastfeeding. [34] Here, such information about the young infant is absent from the record but for a medical note from Doctor Josephine Smith, stating that she supports the applicant’s choice to continue breastfeeding her child for a second year. A second note states that due to the

applicant’s inability to pump her milk, breastfeeding should occur twice over a 8-hour period to ensure that the milk supply is maintained. The applicant also wrote in one of her emails that she wanted to breastfeed the child past her one-year maternity leave because her second child had had health issues and she felt that her young son’s immune system would benefit from breastfeeding. [35] Having carefully examined the record, I conclude that the applicant’s evidence does not meet the second factor of Johnstone. In her particular circumstances, breastfeeding during working hours is not a legal obligation towards the child under her care. It is a personal choice.

Before concluding, Justice

Trudel felt implored to make

one final comment, which was

the following: [38] I do not wish these reasons to be understood as trivializing breastfeeding. The medical profession and numerous health organizations encourage mothers to breastfeed babies, praising, inter alia, the benefits of human milk on the immune system of young children. The applicant chose to breastfeed her children and respect must be had for her decision. This case is not about that choice but rather about the difficulties of balancing motherhood and career. It is about balancing the rights of mothers and that of employers having regard to the basic principle that one must be at work to get paid. The test for establishing prima facie discrimination is well entrenched in Canadian

Labour Pains

Labour Pains

An employment law blog for employers and employees. Published by Sean Bawden of Kelly Santini LLP.

T. 613.238.6321 | sbawden@kellysantini.com | www.kellysantini.com

jurisprudence. In the case of breastfeeding, the onus is on working-outside-the-home mothers to make a prima facie case of discrimination. Unfortunately in this case, the applicant failed.

In the result the application for

judicial review was dismissed,

with costs of $4,600 inclusive

of disbursements and taxes

awarded against Ms. Flatt.

COMMENTARY

What happened? In short, the

court, while lauding Ms. Flatt’s

decision to breastfeed her child

saw the decision as a personal

choice and nothing higher. As a

result, given the articulation of

the test for discrimination,

where “choices” don’t ‘cut it’

the court was unable to find

discrimination.

TAKEAWAYS FOR

EMPLOYEES WITH

LABOUR PAINS

What does this mean for other

nursing mothers? It is important

to note what Justice Trudel said

in paragraph 38 of her reasons

for decision: Flatt does not

close the door on the possibility

that failing to accommodate

breastfeeding can constitute

discrimination; rather in order

to succeed in such an argument

the applicant is going to need to

demonstrate why breastfeeding

is necessary for that individual

and therefore more than simply

a “choice.” In that respect,

individual medical evidence

will likely be necessary – unless

the needle moves significantly

within the epidemiological

literature.

As a result, the takeaway for

employees with labour pains is

that if you find yourself in a

situation where you are seeking,

as one of my friends put it legal

“support and encouragement”

for your decision to feed your

child by way of breastfeeding

and your employer is giving

you a hard time, it may be

prudent to speak with an

experienced employment

lawyer.

The professional, experienced

and cost-effective employment

lawyers for employees at

Ottawa's Kelly Santini LLP would be happy to be of service

to you.

TAKEAWAYS FOR

EMPLOYERS WITH

LABOUR PAINS

Again, it is important to note

that the employer in this case

was Treasury Board, i.e. the

federal government. Few

employers in Canada are as

large or diverse as the federal

public service.

Accommodation of human

rights issues is always

contextual, and as the Flatt

decision demonstrates, not all

requests for accommodation

must be satisfied. However, in

saying that it is very important

for employers to note that the

law does require employers to

at least consider the ways by

which an employee’s request

can be accommodated. On this

point employers would be

prudent to consider what the

Supreme Court of Canada said

in the case of Moore v. British

Columbia (Education), 2012

SCC 61, a summary of which

can be found in the post School

District Learns Lesson in

Accommodation.

If you are an employer in

Ontario and are looking for

experienced, pragmatic, and

honest legal advice with respect

to your workplace issues, the

professional, experienced and

cost-effective employment

lawyers for employers at

Ottawa's Kelly Santini LLP would be happy to be of service

to your business or

organization.

Labour Pains

Labour Pains

An employment law blog for employers and employees. Published by Sean Bawden of Kelly Santini LLP.

T. 613.238.6321 | sbawden@kellysantini.com | www.kellysantini.com

CONTACT ME

To reach the author of this blog,

Sean Bawden, email

sbawden@kellysantini.com or

call 613.238.6321 x260.

Sean P. Bawden is an Ottawa,

Ontario employment lawyer and

wrongful dismissal lawyer

practicing with Kelly Santini

LLP. He has also been a part-

time professor at Algonquin

College teaching Trial

Advocacy for Paralegals and

Small Claims Court Practice.

As always, everyone’s situation

is different. The above is not

intended to be legal advice for

any particular situation. It is

always prudent to seek

professional legal advice before

making any decisions with

respect to your own case.