University of Toronto Journal of Law & Equality VOLUME 14 EDITORIAL BOARD & STAFF
Advisory Board The Hon. Claire Brenda Cossman Sophia L’Heureux-Dubé Shelagh Day Reibetanz The Hon. Robert Mary Eberts Moreau J. Sharpe Martha Jackman Ayelet Shachar The Hon. Lynn Will Kymlicka Martha Shaffer Smith David Lepofsky Colleen Joe Arvay Bruce Porter Sheppard Bill Black Cynthia Petersen Jean Teillet Gwen Brodsky Jim Phillips
Editors-in-Chief Maryam Shahid Michelle Polster
Senior Editors
Alexandria Matic Colin Romano Andy Yu Meghan Zanesse Léa Brière-Godbout Louell Taye Sydney Edmonds Alexandra Hergaarden Robertson
Faculty Advisor Denise Réaume
Administrative Assistant Vanessa Zhang
Associate Editors Adil Abdulla Gary Guinness Katrina Longo Elysia Martini Clare Wooland
University of Toronto Journal of Law & Equality
The Journal of Law & Equality is published annually, generally with one open submission deadline in the Fall and another in the Winter. Specific deadlines for each issue can be found on the University of Toronto Faculty of Law website,
Submissions: Submissions to the Journal of Law & Equality must be in electronic format. The preferred electronic format is Microsoft Word. The JLE’s student staff will review all submissions, and those that continue to be considered for publication are passed on for anonymous peer review. The JLE cannot guarantee publication of any article submitted. If the author has submitted his or her paper for review by another journal, the author must indicate this upon submission to the JLE.
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Citation: (2018) 14 JL & Equality
University of Toronto Journal of Law & Equality
VOLUME 14 – FALL 2018
Editors’ Note i
A RTICLES
The Availability and Use of Flexible Work Arrangements and 1 Caregiving Leaves: Lessons Learned about Policies and Practice Donna S. Lero and Janet Fast
Family Status Discrimination: “Disruption and Great 33 Mischief” or Bridge over the Work–Family Divide? Elizabeth Shilton
Family Status Discrimination and the Obligation to Self- 61 Accommodate Lyle Kanee, QC, and Adam Cembrowski
Discrimination and Family Status: The Test, the Continuing 87 Debate, and the Accommodation Conversation Sheila Osborne-Brown
Work-and-Care Initiatives: Flaws in the Australian Regulatory 115 Framework Anna Chapman
Working Time and Family Life: Looking at the Intersection of 145 Labour and Family Law in Québec Stéphanie Bernstein and Mathilde Valentini
Feminism, Federalism and Families: Canada’s Mixed Social 169 Policy Architecture Kate Bezanson
A Comment: The UN CEDAW Committee’s Concluding 199 Observations of Canada Lara Koerner Yeo
Editors’ Note
This volume of the University of Toronto’s Journal of Law & Equality is a special issue on conflict between work and family responsibilities and the ways in which law and policy affect workers with families. The contributions to the issue were originally presented in February 2017 at “Law, Work and Family Care: A Symposium”, jointly organized by Osgoode Hall Law School, the Women's Legal Education & Action Fund (LEAF), and the Canadian Human Rights Commission. The contributing authors critically examine a variety of policy areas in Canada and abroad. One focus of the volume is the hurdles that complainants face in proving family status discrimination claims.
Donna Lero and Janet Fast start off our examination of these issues by framing the sociological context of work/family conflict. They describe the difficulties many caregivers face as well as initiatives that have been put in place to improve caregiving options. The analysis of the barriers caregivers face in accessing flexible work arrangements leads to a critical assessment of the shortcomings of current parental and caregiving leave and benefit policies.
Against this backdrop, Elizabeth Shilton, Lyle Kanee and Adam Cembrowski, and Sheila Osborne-Brown conduct something of a debate about how well the prohibition on family status discrimination in provincial and federal human rights codes works to enable workers to reconcile their position as employees with their roles as caregivers. Shilton reviews the legislative and jurisprudential history of family status discrimination claims and queries whether the recent case law on family status discrimination, particularly the recent Federal Court of Appeal decision in Johnstone v Canadian Border Services Agency, imposes a more restrictive test than is imposed on claims on other grounds. Shilton attends to the gendered implications of the current test and argues that family status litigation has the potential to contribute to gender-inclusive systemic change, even though this potential has thus far not been reached. Meanwhile, Kanee and Cembrowski and Osborne-Brown debate whether the Federal Court of Appeal test improperly shifts accommodation issues into the prima facie part of the analysis of a human rights complaint instead of requiring employers to show that they have made reasonable accommodation efforts. Kanee and Cembrowski provide a critique of the current jurisprudence from the perspective of arbitrators attempting to apply the legal tests. Osborne-Brown defends the Johnstone test. ii EDITORS’ NOTE VOL. 14
We get the opportunity to compare Canadian policy with other jurisdictions dealing with similar problems through Anna Chapman’s analysis of the Australian context. Chapman offers four themes – favouritism shown to full-time workers, restrictive judicial interpretation of family-related benefits, lax enforcement, and failure to recognize diverse family forms – through which she criticizes the Australian regulatory framework. She argues that the male breadwinner model that explicitly characterized Australian law before a process of reform started in the 1970s has still not been entirely expunged.
Stéphanie Bernstein and Mathilde Valentini focus their discussion specifically on Québec and the intersection between family law and labour law. They reveal how judicial expectations about parents’ “availability” to care for their children and employees’ “availability” to perform work partly shape the competing demands on people who are both caregivers and employees. Instead of these realms continuing to operate in apparent ignorance of each other, Bernstein and Valentini argue that labour law will have to begin to take account of the requirements imposed by family law.
Finally, Kate Bezanson takes the discussion into the realm of employment insurance-funded parental leave, and dissects the underpinnings of recent changes in federal policy. She tracks family- related policies in Canada in the last decade, with a particular focus on the Liberal government’s recent shift to a ‘Gender Results Framework’. Despite the focus on gender equality, Liberal policy contains some holdovers from the era of the Conservative government of Stephen Harper. Bezanson argues that a feminist future in Canadian social policy requires full recognition of caregiving as a public good.
We are grateful to Symposium’s organizing committee for the opportunity to publish this collection of articles, and to our contributors for their tireless efforts in expanding the scholarship in this fascinating and rapidly developing area of the law.
Maryam Shahid and Michelle Polster Editors-in-Chief Journal of Law & Equality, Volume 14
The Availability and Use of Flexible Work Arrangements and Caregiving Leaves: Lessons Learned about Policies and Practice
Donna S. Lero and Janet Fast
ABSTRACT
Research, policy, and media interest in the challenges of combining paid work with family care work have grown dramatically since the 1990s. Improving care leaves and allowing more flexibility for working parents and carers are included in current policy agendas. These occur against a backdrop of growing demand for, and a shrinking supply of care arising from changes in women’s labour force participation and family patterns, population aging, greater precarity in jobs and income, and concern about the capacity of formal care systems. The result is “a profound mismatch” between workplace norms about ideal (unencumbered) workers and the needs of most workers with care responsibilities, as well as concern about gender equality, social justice, and the sustainability of family care as an essential foundation to publicly funded health and social care services. In this article, we identify factors affecting Canadians’ access to flexible work arrangements and caregiving leaves and consider changes needed to remedy existing deficiencies. We map the terrain of work–family conflict in contemporary Canadian workplaces (prevalence, causes, consequences) and then examine whether current policies address the needs of working carers and are readily available and accessible to workers. A final section underscores the importance of a multi-pronged, comprehensive policy approach to better address unmet needs in a more equitable manner.
Research studies, policy developments, and media interest in issues related to work–family conflict, work stress, and the challenges of combining paid work with family care have grown dramatically since the early 1990s. Adding fuel to the fire is a growing gap in our capacity to care for adult family members with chronic health conditions resulting from population
Donna Lero is a University Professor Emerita in the Department of Family Relations and Applied Human Nutrition at the University of Guelph. Janet Fast is a Professor and Co- Director in Research on Aging, Policies and Practice at the University of Alberta, Edmonton.
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aging and rising disability rates.1 These developments occur against a backdrop of growing awareness of how changes in women’s labour force participation and family patterns, population aging and increasing caregiving demands, and limited flexibility for workers have led to “a profound mismatch” between workplace norms that reflect expectations for ideal (unencumbered) workers and the needs of the majority of employees with care responsibilities.2 This mismatch and its consequences for individuals and families, when placed in a wider context, provoke additional concerns about gender equity, labour markets, social justice, and the sustainability of family care as an essential foundation for publicly funded health and social care services. We first set the scene for some of the policy debates that follow about how to address this mismatch in the absence of Canadians having a legal right to reconcile work and family responsibilities.3 Mapping the terrain of work–family conflict in the contemporary Canadian workplace illuminates its prevalence, causes, and consequences and reveals how deep and pervasive the problems are. A partial response is evident in initiatives to improve parental and caregiving leaves and to allow more flexibility to support working parents and carers in current policy agendas. Most recently, the federal government has introduced changes to federal Employment Insurance (EI) benefits related to parental and caregiving leave and initiated a right to request flexible work arrangements (FWAs) in federally regulated workplaces. 4 The second section of this article illustrates the extent to which family/friend caregivers to adults with chronic health conditions or aging-related needs experience barriers accessing FWAs that could enable them to better manage paid work and care responsibilities with less cost to themselves and their employers. A third section addresses the shortcomings of parental and caregiving leave and benefit policies currently in place, contrasting the parental leave
1 Guillaume Lefrançois et al, “Trends and Characteristics Affecting Disability among Older Canadians Living in Private Households” (2013) 40:3-4 Canadian Studies in Population 174 at 174-92. 2 Kathleen Christensen, “Leadership in Action: A Work and Family Agenda for the Future” in Marcie Pitt-Catsouphes, Ellen Ernst Kossek & Stephen Sweet, eds, The Work and Family Handbook: Multidisciplinary Perspectives and Approaches (Mahwah, NJ: Lawrence Erlbaum Associates, 2006) 705. 3 Canada has not ratified the International Labour Organization Convention 156 on Workers with Family Responsibilities (1981), online:
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policies that exist in Québec and the rest of Canada. We conclude with suggestions for a multi-pronged, more comprehensive approach to address parents’ and carers’ needs that may be more equitable and effective than our present suite of policies and mechanisms.
I. WORK–FAMILY CONFLICT AND STRESS Work–family conflict is a form of role conflict that occurs when meeting the demands of one role makes it difficult to meet the demands of another. 5 Incompatibility is most evident when the demands at work (long hours, shift work, an unrealistic workload) and at home (the presence of young children or the need to care for a family member with a disability or acute or chronic health condition) compete for an individual’s time and energy. The result is role strain and role spillover (work roles interfering with family/caregiving roles and/or family responsibilities interfering with involvement or availability in paid work). Having resources available to help people meet their commitments can offset the impact of high demands in either sphere. But high demands and low resources in either or both domains will exacerbate inter-role conflict, resulting in stress, which, in turn, may negatively impact employees’ physical, mental, emotional, and/or social health.6 Resources and positive experiences in either domain also can result in positive spillover in the other. For example, income, skill development, and positive experiences at work enhance employees’ engagement and life satisfaction, while positive relationships with a partner, children, and other family members and appropriate community supports promote physical and psychological health and serve as the basis for functioning well at work.7 There is also growing awareness that both the costs of work–family conflict and role strain and the benefits of positive work–family spillover can accrue to individuals, families, employers, and society. Consequently, effective work–family integration can be reframed as an issue that is not just a personal trouble but also, increasingly, a public one.8 However, in Canada and the
5 Jeffrey H Greenhaus & Nicholas J Beutell, “Sources of Conflict between Work and Family Roles” (1985) 10:1 Academy of Management Review 76. 6 Michael R Frone, Marcia Russell & M Lynne Cooper, “Antecedents and Consequences of Work-Family Conflict: Testing a Model of the Work-Family Interface” (1992) 77:1 Journal of Applied Psychology 65; Lieke L ten Brummelhuis & Arnold B Bakker, “A Resource Perspective on the Work-Home Interface: The Work-Home Resources Model” (2012) 67:7 American Psychologist 545. 7 Jeffrey H Greenhaus & Gary N Powell, “When Work and Family Are Allies: A Theory of Work-Family Enrichment” (2006) 31:1 Academy of Management Review 72. 8 The concept of personal troubles versus public issues was popularized by C Wright Mills in 1959. C Wright Mills, The Sociological Imagination (London: Oxford University Press, 1959). For evidence of the public consequences, see Tammy D
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United States, it remains the case that whether one can thrive as both an engaged family carer and productive employee may be mostly a matter of luck, geographic and social location, workplace characteristics, employers’/supervisors’ discretion, and the trade-offs that individuals are able to make (often between flexibility and/or reduced hours and income). Both public policies and workplace practices can function as complementary mechanisms to reduce work-family conflict more equitably.9 A. The Prevalence of Work–Family Conflict and Stress Data on the prevalence and causes of work–family conflict and stress in Canada derive mainly from Statistics Canada’s General Social Survey program as well as from research conducted by individual researchers, most of whom have collected data in selected workplaces. Statistics Canada captures data on unpaid family work, paid work, stress, work stress, time crunch/poverty, working conditions, and satisfaction with work–family balance. This section summarizes the main findings from a variety of these studies. General levels of stress are high among the employed population. In 2010, Statistics Canada reported that 27 percent of Canadian workers described their daily lives as highly stressful.10 Six in ten highly stressed workers identified work as their main source of stress; time and family obligations were chosen as the main sources by another 20 percent of workers. Notably, those most worried about time were more likely to be parents with children at home and family-stressed workers were 1.5 times more likely to be women than men.11 Dissatisfaction with work–life balance is not new and is on the rise. The proportion of Canadians who are satisfied with their work–life balance dropped 10 percent from 78 percent in 2008 to 68 percent in 2016. Over
Allen et al, “Consequences Associated with Work-to-Family Conflict: A Review and Agenda for Future Research” (2000) 5:2 Journal of Occupational Health Psychology 278 at 278-308; Linda Duxbury & Christopher Higgins, Work-Life Conflict in Canada in the New Millennium: A Status Report (Ottawa: Health Canada, 2003), online:
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one-fifth of employed Canadians said they always or often had difficulties fulfilling family responsibilities because of the amount of time they spent on their job.12 In 2012, one in four parents was dissatisfied with their work–life balance or was neither satisfied nor dissatisfied.13 Those who were less satisfied were more likely to be women, especially lone parents, to have at least one child under the age of five, or to be both parents and caregivers to a family member or friend with a chronic health condition, a disability, or problems related to aging. Among parents employed full- time, access to a flexible schedule and the ability to take unpaid leave to care for a child, spouse, or other family member was associated with higher satisfaction, especially for mothers (74 percent of those who could take an extended leave for personal reasons were satisfied compared to 59 percent of those who did not have this option).14 Role overload and interference between work and family are common. A series of national studies conducted by Linda Duxbury and Christopher Higgins has identified role overload as a serious and systemic issue among employees. Fifty-eight percent of their 2001 sample was assessed as experiencing high role overload, as was true of 40 percent of the 2012 sample. High levels of work interference with family were reported by 29 percent of the 2012 sample, which included a large proportion of professional workers.15 There is also now growing concern, and a growing body of research, about the challenges that result from combining paid work with care for adult/aging family members and friends with long-term health conditions. Doing so is now the norm for many employed Canadians, with caregivers making up 30–35 percent of the employment age workforce (19–70 years).16
12 Statistics Canada, “Life in the Fast Lane: How Are Canadians Managing?, 2016,” The Daily (14 November 2017), online:
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Caregivers, and the nature of the caregiving situations they are dealing with, are diverse. Analyses of Statistics Canada’s 2012 General Social Survey on Caregiving and Care Receiving (GSS) reveal that a substantial majority (82 percent) of caregivers of employment age were employed (over 5.6 million Canadians), and most worked full-time (69 percent of women, 72 percent of men). 17 More than one-quarter of employed caregivers (28 percent of women, 27 percent of men) are “sandwich caregivers” who provide care to an adult with a chronic health condition or an aging family member and also have a child under fifteen at home.18 The largest proportion of employed caregivers are aged forty-five to sixty- four, but an important minority are “young carers” who have care responsibilities at the same time that they are finishing their schooling or attempting to establish themselves in a career.19 Most employed caregivers care for their parents or parents-in-law (52 percent of women, 58 percent of men), and most live near the person for whom they care (less than thirty minutes by car (56 percent of women, 54 percent of men) or in the same household (21 percent of women, 22 percent of men), but an important minority provide long distance care, even in another province or country.20 Caregiving can be demanding. Most caregivers (74 percent) spent under ten hours per week on care, but for one in ten caregivers, it occupied thirty or more hours per week, equivalent to a full-time job. Many caregivers (43 percent) cared for more than one family member or friend at the same time, and about half of them had been caring for their primary care recipient for more than four years.21
Caregivers (2015), online:
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B. Contributors to Work–Family Conflict Understanding the forces that contribute to work–family conflict points the way to better policies as well as showing us where our efforts need to be concentrated. In addition to specific characteristics of work and family and social roles, the scholarly literature on work–family conflict is quite robust in identifying aspects of workplace culture (norms, expectations, and demands) that tend to exacerbate work–family conflict and reduce the likelihood of employees requesting more flexibility. Three dimensions of organizational culture are pertinent: a culture of long hours; a culture based on face time; and a culture that conveys the expectation that work should always be prioritized over family.22 Long work hours and a lack of control over work hours and work demands figure prominently as predictors of work–life conflict. Indeed, working fifty hours plus per week has been shown to be one of the strongest predictors of Canadians’ dissatisfaction with work–life balance. 23 Working non-standard hours (especially irregular hours or rotating shifts) also contributes to dissatisfaction with work–life balance for men and role overload for both men and women.24 Employees with heavier work demands that compete directly with family time (including overtime, supplemental work at home, and nights spent away from home for business purposes), and who have lower levels of control, experience the most work-to-family interference.25 Such workplaces are unlikely to support mitigating policies such as flexible work options and family leave. Employees in these circumstances may also be reluctant to request such options, even if their current situation is causing dissatisfaction and distress. Work-to-family interference was also found to be most problematic for Canadians with more dependent care responsibilities (such as young children at home and/or eldercare responsibilities). In fact, one in five respondents in Duxbury and Higgins’s 2012 study reported high levels of strain associated with the physical, financial, or emotional aspects of
22 Cynthia A Thompson, Laura L Beauvais & Karen S Lyness, “When Work-Family Benefits Are Not Enough: The Influence of Work-Family Culture on Benefit Utilization, Organizational Attachment, and Work-Family Conflict” (1999) 54:3 Journal of Vocational Behavior 392. 23 Annette Tézli & Anne H Gauthier, “Balancing Work and Family in Canada: An Empirical Examination of Conceptualizations and Measurements” (2009) 34:2 Canadian Journal of Sociology 433. 24 Cara Williams, “Work-Life Balance of Shift Workers,” in Statistics Canada, Perspectives on Labour and Income, Catalogue No 75-001-X (Ottawa: Statistics Canada, 2008), online:
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providing care to older adults. Statistics Canada data indicate that carers at higher risk of experiencing employment consequences include those caring for close kin (spouses, parents, children with disabilities), caring for someone with a cognitive disability such as Alzheimer’s disease and other dementias, residing with the care recipient, and providing more hours of care.26 Different factors appear to affect women’s time stress, role overload, and satisfaction with work–life balance compared to men’s experience of these same things. These gender differences typically reflect women’s greater involvement in, and responsibility for care, whether for children or aging family members. It is women, more than men, who curtail their work involvement or career opportunities to ensure the well-being of other family members and who likely pay a heavier price in terms of the observed maternal wage gap and other consequences.27 It also is important to consider how different individual and work characteristics interact. Work stress and role overload, for example, are often seen in highly educated managers and professionals who may have more flexibility but a heavy workload that can result in long hours and blurred boundaries when extra work is routinely done at home in the evenings and on weekends. For others, too little work, unpredictable work shifts, physically demanding work, and insecure income, which are often associated with precarious employment, are the dominant factors.28 In contrast, when a supportive workplace culture translates into concrete measures to facilitate the integration of paid work and family work, work–family conflict can be mitigated. A recent study of work– family conflict among dual earners with children in ten countries found that satisfaction with organizational policies, such as the opportunity to have a flexible schedule, reduce work hours, or take family leave, was correlated with lower work–family conflict, higher positive work-to-
26 Fast et al, Intersection of Caregiving, supra note 16; Meredith B Lilly, Audrey Laporte & Peter C Coyte, “Do They Care Too Much to Work? The Influence of Caregiving Intensity on the Labour Force Participation of Unpaid Caregivers in Canada” (2010) 29:6 Journal of Health Economics 895; Jorge Uriarte-Landa & Benoît-Paul Hébert “Sooner or Later: Life Events and the Timing of Retirement” (Paper presented at “Canada Coming of Age: The Policy Impact of an Aging Population” at the Canadian Research Data Centre Network National Conference, Edmonton, 4-5 October 2011) [unpublished]. 27 Melissa Moyser, “Women and Paid Work,” in Statistics Canada, Women in Canada: A Gender-Based Statistical Report, Catalogue No 89-503-X (Ottawa: Statistics Canada, 2017), online:
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family spillover, and greater life satisfaction. Moreover, satisfaction with organizational policies was significantly associated with a lower intent to leave the organization—an important finding given the costs of recruiting and replacing talented employees and the investments made in their training and firm-specific experience.29 C. Consequences of Work–Family Conflict The extant literature also speaks to significant impacts of high levels of work–family conflict for employees, their families, and their workplaces/employers. For employees, these include high levels of burnout, perceived stress, depressed mood, lower levels of life satisfaction, lower levels of satisfaction with parental abilities, and poorer physical health.30 While the implications of caring for adult family members and friends with long-term health conditions and disabilities have been less studied than have the implications of child care, robust evidence is now emerging that dependent adult care also has health, social, and financial consequences for carers. 31 In a scoping review of the literature addressing the economic consequences that carers experience, Norah Keating and colleagues identified four main categories of employment restrictions: labour force exit/preclusion; restricted work hours and absences; decreased productivity while on the job; and career limitations.32 In 2012, care-related absenteeism was the most common employment consequence/coping strategy (44 percent) reported by family carers in Canada. 33 About 15 percent of employed caregivers (14 percent of women; 16 percent of men) reported that they had reduced their usual hours of work in order to accommodate their care responsibilities during the previous year. A further one in ten Canadian caregivers had quit, been fired, or retired from a job because of their care responsibilities within the past year.34
29 Lero & Bardoel, supra note 9. 30 Duxbury & Higgins, Revisiting Work-Life Issues, supra note 15. 31 Duxbury, Lyons & Higgins, supra note 15; Allen et al, supra note 10; Duxbury & Higgins, Revisiting Work-Life Issues, supra note 15. 32 Norah C Keating et al, “A Taxonomy of the Economic Costs of Family Care to Adults” (2014) 3 Journal of the Economics of Aging 11; Fast et al, Combining Care Work, supra note 18; Martin Turcotte, “Insights on Canadian Society, Family Caregiving: What Are the Consequences?” in Statistics Canada, Insights on Canadian Society, Catalogue No 75-006-X (Ottawa: Statistics Canada, 2013), online:
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These employment consequences can have significant financial implications for caregivers, including foregone present and future income, reduced pension benefits, lost employment benefits, and reduced savings and investments.35 For some, caregiving leads to long-term, cumulative financial and personal hardship, threatening their ability to meet care and job obligations, their current financial security, and their ability to prepare for their own later years.36 The missed days of work, job/labour force exits, distractions at work, and other employment consequences also have far- reaching implications for workplaces/employers, the labour market, and the economy as a whole.37 When employees need to accommodate their paid work to their care responsibilities, employers must deal with higher rates of absenteeism, turnover, and presenteeism at work. Aggregated to the population level, employees age nineteen to seventy who are caring for adults with long-term health problems and disabilities accounted for 9.7 million days of absenteeism, 4.9 million fewer hours worked by those who reduced their usual work hours, and the loss of 558,874 workers from the paid labour force annually.38 Together, these consequences represent an enormous loss of productivity to employers, the labour market, and the Canadian economy. The Conference Board of Canada has estimated the cost to Canadian employers of care-related turnover among caregiver employees aged forty-five and older at $355 million.39 They have further estimated that care-related absenteeism represents 10 percent of absenteeism reported for all Canadian workplaces, which they estimated costs Canadian employers nearly $934 million.40 Increased disability claims have also been reported as a result of stress- related physical and mental health problems, including depression as well as a reduced quality of family life.41 While there are no estimates of what
35 Keating et al, supra note 32. 36 Organisation for Economic Co-operation and Development (OECD), Help Wanted? Providing and Paying for Long-Term Care (Paris: OECD Publications Service, 2011), online:
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care-related health consequences might cost Canadian employers, one US study suggests that they may account for an additional 8 percent in costs of physician fees, prescription drugs, and health insurance premiums.42 Care-related employment consequences also have implications for the labour market and economy more generally, although estimates of the monetary costs are rare. The lost contributions to the workforce by caregiver employees translate into lost income tax revenues and higher social program costs. Josephine Jacobs and colleagues estimate the aggregate costs to government of these labour force impacts for Canadian caregivers who provide the most hours of care to be $641 million in lost income tax revenues and higher social assistance benefit payments.43 Given the significant stress-related and economic costs of work–family conflict that can result for both employees and their families and for employers, it is important to consider what policies and practices might enable working parents and caregivers to more flexibly manage their work and care responsibilities without incurring major economic or career costs, especially for women who are more likely to experience such costs. Researchers have considered a range of options beyond the accommodations individuals might make themselves (leaving the workforce, reducing their hours to part-time, possibly trading off a less demanding job, or even self- employment for more flexibility). The majority of the research has focused on the availability of flexible work arrangements (FWAs) and periods of leave (the latter most often reflecting institutional policies that allow employees job-protected time off for care, typically with some form of wage replacement). Cross-national research indicates that the relationship between national policies and what employers provide is complex. Public policies provide more equitable access, support social norms that limit discrimination, and reflect the importance of supporting both earning and caring roles. Employers can augment what is required, provide more flexible options, and be responsive to individual circumstances.44
Whitehead, eds, Handbook of Work-Family Integration (London: Elsevier, 2008) 191; Allen et al, supra note 10. 42 MetLife Mature Market Institute and National Alliance for Caregiving, The MetLife Caregiving Cost Study: Productivity Losses to U.S. Business (Westport, CT: MetLife Mature Market Institute, 2006). 43 Josephine C Jacobs et al, “The Fiscal Impact of Informal Caregiving to Home Care Recipients in Canada: How the Intensity of Care Influences Costs and Benefits to Government” (2013) 81 Social Science and Medicine 102. 44 Lero & Bardoel, supra note 9; Laura Den Dulk et al, “National Context in Work-Life Research: A Multi-Level Cross-National Analysis of the Adoption of Workplace and Work-Life Arrangements in Europe” (2013) 31:5 European Management Journal 478.
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II. THE AVAILABILITY AND ACCESSIBILITY OF FWAS FWAs may be implemented by businesses for a variety of economic and operational reasons: as an aid to recruitment, retention, and job satisfaction; to cover more shifts; as a tool to successfully implement diversity and inclusion policies; and/or to reduce expenses (for example, reducing reliance on office space through telework options). In the work– family literature, however, FWAs are seen as a primary means for providing workers with the opportunity to more comfortably combine work, care, and other life roles in ways that offer them more control to manage both ongoing and unexpected circumstances. Flexible work options may also be of particular value for employees who have episodic or chronic health conditions as well as those experiencing life transitions or other unique situations. Flexible work options may be provided as a result of formal workplace policies or, more commonly, may be offered informally by employers or supervisors on a discretionary basis. FWAs are many and varied, each providing an alternative to full-time work on site during a “standard” schedule. These may include: flex time (flexible or alternate daily starting and ending times or compressed work weeks); flex place (working someplace other than the usual workplace, mainly at home); flexibility in or control over how time in the workplace is spent (when breaks are taken, shift work schedules, overtime hours); reduced time options (part-time or part-year work, job sharing); graduated leave (returning to work gradually after childbirth, adoption, or end-of-life care); and other leave options (time off during the workday, compensatory time off or banked overtime, and short or longer periods of paid or unpaid leave). These alternative work arrangements are in addition to periods of paid or unpaid leave provided as a result of public policies such as maternity, parental, or caregiving leave and sick leave. In examining FWAs, it is important to distinguish between formal policies and informal (supervisor-mediated) arrangements. Further, it is critical to distinguish between the official availability of flexible options and whether those arrangements are accessible and usable by employees. Sadly, Canada lacks a means of collecting reliable, representative data on the availability and use of FWAs. Previous studies, based on Statistics Canada’s Workplace and Employee Survey conducted between 1999 and 2005 found that no more than one-third of Canadian employees had some flexibility with respect to work scheduling, and that access to other family-friendly arrangements (telework) and services (such as on-site
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childcare and eldercare) was very limited.45 Access to/use of “family- friendly” work arrangements based on employee data have revealed that women (especially those with dependent family members) were less likely to participate in FWAs than men, confirming the mismatch between employee needs and availability, with access to and/or use of FWAs better predicted by establishment characteristics such as firm size and industry than by family characteristics.46 Additional research on the availability and accessibility of FWAs, most of it based on US studies, provides more insight into how access is distributed when there are few regulatory requirements and limited influence on employers through collective bargaining. Periodic national surveys of employers conducted by the Families and Work Institute and the Society for Human Resource Management suggest that the majority of employers surveyed claim to offer a range of flexible arrangements, at least to some of their employees.47 While the popularity of certain arrangements and benefits has increased over time, there has been a general trend to offer flexible scheduling options and benefits mostly as a tool to maintain/optimize full-time work. Far fewer employers offer options to reduce work or workloads such as the options to reduce hours and the possibility of shifting from full-time to part-time within the same position. Two particularly important studies illuminate the factors that lead to uneven and limited availability of and access to FWAs in the United States. Stephen Sweet and colleagues critically examined patterns of availability among a nationally representative sample of 545 employers. 48 These researchers distinguished between availability as most often reported (for example, flex options that are reportedly available to at least some employees) and what these researchers referred to as expansive or wide-scale availability. The latter refers to offering a wide array of arrangements (including reduced hours options) to most or all employees. Based on these more stringent criteria, these researchers concluded that the range of flexible work options
45 Ana Ferrer & Lynda Gagné, “The Use of Family-Friendly Workplace Practices in Canada,” Montreal Institute for Research on Public Policy Working Paper No 2006-02 (2006). 46 Ibid. 47 Kenneth Matos & Ellen Galinsky, 2014 National Study of Employers (New York: Families and Work Institute, Society for Human Resource Management and When Work Works, 2014), online:
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available to employees is narrowly restricted (primarily to moving hours or the location of work) and that “most workers in the USA have constrained choices” with respect to flexible work options. Multiple factors distinguished the relatively small group of employers who provided widespread availability, including industry sector and labour market conditions (not only perceived challenges in recruiting highly skilled employees but also a need to rely on low-skilled workers to meet staffing needs). Most particularly, employers who offered flexible arrangements to all or most employees were uniquely distinguishable based on their strong organizational support for flexibility as a business approach. Sweet and colleagues noted that it is highly likely that more employees will use flexible work options when they are seen as a positive feature of an organization’s culture rather than as a less usual accommodation granted to fewer, select employees. A second, noteworthy study sensitizes us to issues of equity and social justice with respect to access to decent working conditions and supportive arrangements for managing dependent care. Using data from a nationally representative survey of US workers, Claudia Lahai, Alison Earle, and Jody Heymann found less access to a supportive culture at work, options for schedule flexibility, and paid vacation leave for women, Hispanics, those with less education, and first-generation immigrants.49 Employed caregivers in these circumstances reported a greater frequency of adverse job outcomes, including quitting work and reducing hours involuntarily. For these individuals, adult caregiving had direct economic consequences that further complicated their well-being and capacity to care. Our own research on the availability and accessibility of FWAs to support employed caregivers illustrates similar limits to flexible work options as a viable tool for many caregivers. Data collected in 2012 based on a diverse, but voluntary, sample of 291 employers revealed that, while many employers provide some flexibility to at least some employees to better manage work and care obligations, a minority of employers provided options for employees to reduce their hours. Like Sweet and colleagues, we found that far fewer employers provided flexible arrangements to all or most employees (see Table 1).50
49 Claudia Lahaie, Alison Earle & Jody Heymann, “An Uneven Burden: Social Disparities in Adult Caregiving Responsibilities, Working Conditions, and Caregiver Outcomes” (2013) 35:3 Research on Aging 243. 50 Donna S Lero et al, The Availability, Accessibility and Effectiveness of Workplace Supports for Canadian caregivers Final Report (Guelph: University of Guelph Centre for Families, Work and Well-being, 2012), online:
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Table 1. Types of flexibility available to some employees and to all or most employees
Allows at least Allows all or some most Type of flexibility employees to employees to … … Flexible time and place Percentage of employers Periodically change starting and quitting times within 87 40 some range of hours Work some hours at home or 77 13 off site on an occasional basis Reduced time
Work reduced hours for a period of time to 74 31 accommodate personal needs
Time off Take time off during the work day to attend to important 81 50 family or personal needs without loss of pay
Use a compensatory time off 62 27 program or bank overtime
Our study also revealed that most employers assumed that their current policies to support work-family balance made available to all employees were sufficient; very few had considered what might be more particular needs of caregivers of aging and adult family members and most did not yet see the importance of developing such policies. Moreover, when asked specifically, approximately half of the employers/human resource managers surveyed reported that they saw providing support to employed caregivers as “an individual favour,” while half saw it as an important
representatives from private, public, quasi-public, and non-profit workplaces from across Canada, including small- and medium-sized businesses and large, transnational corporations.
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organizational strategy. As noted previously, when flexible work options are provided as an individual favour, employees may be reluctant to request them for fear of signalling to supervisors that they are dealing with issues that could be affecting their work performance or raising red flags about their organizational commitment. Other studies confirm both the value of supporting employees with caregiving responsibilities and some of the difficulties employees may experience in accessing them.51 Research demonstrates that, while caregiving can negatively impact workplace productivity, FWAs can help employees manage work and care to reduce costs to both caregiving employees and their employers. In fact, evidence from analysis of Statistics Canada’s 2012 GSS data suggests that employed caregivers with access to FWAs are, for the most part, less likely to report care-related employment consequences.52 Based on our analyses of the data, women and men who had the option of flexible start and end times to their workday were only 40 and 60 percent as likely to reduce paid work hours as those who did not have that option. Women who had the option to work part-time, or who had access to short-term paid or unpaid leave options, were 60 percent as likely to reduce work hours as their counterparts without these options. Similarly, men who had access to extended leaves were 62 percent as likely to miss days of work as those without such options. Evidence is mounting that providing support for caregiver employees makes good business sense.53 Firms with carer-friendly FWAs have been reported to benefit from increased productivity, lower incidence of sick leave and other forms of absenteeism, lower recruitment and retention costs, and lower staff turnover, especially when workplace flexibility is implemented as part of a strategy focused on employee quality
51 Susan C Eaton, “If You Can Use Them: Flexibility Policies, Organizational Commitment, and Perceived Performance” (2003) 42:2 Industrial Relations 145; Eliza K Pavalko & Kathryn A Henderson, “Combining Care Work and Paid Work: Do Workplace Policies Make a Difference?” (2006) 28:3 Research on Aging 359; Carol F Shoptaugh, Jeanne A Phelps & Michelle E Visio, “Employee Elder Care Responsibilities: Should Organizations Care?” (2004) 19:2 Journal of Business and Psychology 179; Martin Zuba & Ulrike Schneider, “What Helps Working Informal Caregivers? The Role of Workplace Characteristics in Balancing Work and Adult-Care Responsibilities” (2013) 34:4 Journal of Family and Economic Issues 460. 52 Fast et al, Combining Care Work, supra note 18. 53 Paula Byrne, “British Telecom Case Study: Care-Related Supports,” EuroFound (2011), online:
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enhancement.54 As one respondent reported in a focus group study of Alberta caregivers:
I stay in my job because both systemically and in my workplace, there’s a lot of leave options, so you can do leave with income averaging, which I’ve taken advantage of before. We can go back and forth between full and part time; I can do a compressed work week. (Jennifer, employed caregiver)55
However, these flexible workplace policies are only effective when employers/managers are supportive and when employees perceive these options as being both useful for them and as not resulting in stigma, a threat to their job security, or negative career consequences. In 2012, more than three-quarters of caregiver employees who responded to Statistics Canada’s GSS reported that they had access to FWAs at their place of work. However, nearly half of these caregiving employees also reported that they felt they could not use them without risking a negative impact on their careers.56 This finding is echoed in the findings from a study by Jacquie Eales and colleagues. 57 For example, one employed caregiver described the lack of trust in her employer’s supportiveness that prevented her from approaching her supervisor for assistance:
I went to very great lengths to make sure that no one, and I mean no one, that I worked with knew what I was dealing with at home, because through the course of my career, I have seen what has happened to people who have had handicapped children or some other situation. It would be really, really nice to think employers want to keep us, but we’re replaceable, at least in my profession. (Cynthia, employed caregiver)
54 Ibid; Lee & DeVoe, supra note 53. 55 Jacquie Eales et al, Assessing the Needs of Employed Caregivers and Employers (Edmonton: Research on Aging Policies and Practices, University of Alberta, 2015), online: Research on Aging Policies and Practice
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Ironically, in the same study, participants in the employer focus group pointed out that employees’ disclosure of their status as a caregiver was important because it enabled supervisors to anticipate employees’ needs and provide support before absenteeism or performance management became an issue:
Any type of situation where you’re self-identifying earlier in the situation is better because you haven’t hit that point of frustrating your employer or your manager. You have that understanding, there’s an awareness and you can plan. Everybody can plan then, in that case. (Melissa, employer, broader public sector)
In sum, family care, whether it be “normal” child care or care for children or adults with chronic or acute illness or disabilities, is a common, but highly varied, experience that can have significant implications not only for individual and family well-being, but also for the productivity and profitability of workplaces, the labour force, and the economy more generally. There is robust evidence that workplace supports can redress individual outcomes in the right circumstances and that there is a business case to be made to both employers and governments for ensuring that those supports are available and accessible, yet evidence indicates that availability and accessibility of workplace supports remains limited. There also is evidence that there are systematic differences in who is likely to gain access, leading to social justice concerns. One policy option on the horizon that could assist in promoting greater and more equitable access to flexible work options is the adoption of a statutory right to request flexibility,58 as has been implemented in the United Kingdom, Australia, New Zealand, and several US states. A growing literature suggests that a statutory right to request FWAs can be a useful, if soft, tool for promoting greater use of flexible options.59 We note this option because the federal government has introduced the right to request FWAs in the Canada Labour Code, which is to be implemented in 2018.60 A right to request FWAs also has been included in the latest amendments to Ontario’s
58 Natalie Skinner, Abby Cathcart & Barbara Pocock, “To Ask or Not to Ask? Investigating Workers’ Flexibility Requests and the Phenomenon of Discontented Non- Requesters” (2016) 26 Industrial Relations: A Journal of Economy and Society 103. 59 Sarah Nogues & Diane-Gabrielle Tremblay, “Le “Right to request flexible working”: un outil favorable aux employés proches aidants?” (2016) 42:4 Canadian Public Policy 442. For a discussion of the Australian regime, see Anna Chapman, “Work-and-Care Initiatives: Flaws in the Australian Regulatory Framework” in this issue. 60 Canada Labour Code, RSC 1985, c L-2.
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employment standards legislation, with implementation anticipated in June 2019.61 While not a panacea, the introduction of such legislation can help create a social climate that allows the negotiation of flexible work options to be more normative, moving beyond employer largesse and/or the accommodation of special circumstances to employer–employee contracts that provide employees with more agency in managing work and care as well as other life transitions and provide employers with the tools to engage and sustain an increasingly diverse workforce.
III. AN EXAMINATION OF CURRENT LEAVE POLICIES IN CANADA An alternative and complementary approach to voluntary employer provision of flexibility and leave for family and personal responsibilities can be found in programs and regulations that ensure the right to take job- protected leave from work. Interest in the design and functioning of leave policies and programs is a global concern; these policies have multiple objectives and potential benefits and are situated at the nexus of labour policies, social/family/care policies, and concerns about gender equality. International comparisons focus on issues of coverage/eligibility, duration, the level of income replacement, dedicated periods set aside for fathers in the case of parental leave, and flexibility in how leave may be taken.62 In Canada, an analysis of leave policies is a moving target and a complicated affair. Provisions for workers’ access to job-protected, unpaid leave can be found in employment standards legislation (ESL) that is specific to each province and territory and in the Canada Labour Code for employees in federally regulated workplaces. Access to partial income replacement is provided through the EI Program (Special Benefits) to eligible workers. Thus, a thorough analysis of any specific leave program requires consideration of what is available in each of the fourteen jurisdictions and how these regulations relate to EI benefit rules, along with any additional entitlements as a result of collective agreements or employer-provided policies. Québec’s unique Parental Insurance Program (QPIP) is a further departure, which operates outside of the EI system. The QPIP program covers maternity, parental, and paternity leave and income replacements in a far more generous and flexible manner than is available elsewhere in Canada (see discussion below).63
61 Fair Workplaces, Better Jobs Act, SO 2017, c 22, s 21.2. 62 The International Network on Leave Policies and Research publishes an annual comparative review of leave policies and promotes interdisciplinary scholarship on this topic. For more information, see
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Since 2000, there have been notable additions to, and expansions of, care- related leave and benefit policies. Usually, changes have been introduced first by the federal government in the EI system and/or Canada Labour Code with provincial/territorial governments amending their ESL legislation, typically within a year or two.64 In those cases where eligibility rules for leave and benefits vary, an employee may well qualify for benefits, but not leave, and vice versa. This occurs when, for example, an employee who meets the eligibility requirement for EI parental or compassionate care benefits (600 hours of insurable employment in the last year) has not worked long enough with the same employer to qualify for unpaid leave in their province (six months under the Canada Labour Code; seven months in Manitoba, Nova Scotia, and the three territories). In provinces that have either no minimum duration or require a brief period of consecutive weeks of employment to qualify for unpaid leave (British Columbia, Ontario, New Brunswick, and Alberta), an employee who has changed jobs in the last year may qualify for unpaid leave, but not EI benefits during the leave period, even though they have been paying EI premiums consistently for many years. In the next two sections, we focus on two of the major types of leave policies—maternity and parental leave and compassionate care/caregiving leave.65 A. Maternity and Parental Leave The analysis that follows provides an overview of current public policies in Canada. We focus on issues of coverage/eligibility, duration, the level of income replacement available, access to paternity leave, and recent efforts to provide more flexibility in how parents may utilize their leave and benefit periods. Contrasts between Québec and the rest of Canada are notable in each of these characteristics and in the observed uptake of parental and paternity leave by fathers. In international comparisons, Canada compares favourably in terms of the duration of leave available but less so in terms of
64 Martha Porado, “Parental Leave Rules Set to Undergo Major Shift as Provinces Adjust to EI Changes,” Benefits Canada (1 December 2017), online:
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income replacement levels and access to designated paternity leave.66 It should be noted that individual employers may offer extended leave, a graduated return to work following maternity or parental leave, or a top-up to EI/QPIP benefits, either voluntarily or as a result of collective bargaining. Overview and Experience outside Québec Paid maternity leaves with some job protection date back more than 100 years and are well established in almost all industrialized countries. 67 Maternity leaves have always focused on maternal health and well-being in the later stages of pregnancy and following the birth as well as infants’ health at birth and afterwards.68 British Columbia passed Canada’s first maternity leave legislation, granting women six weeks of leave in 1921.69 Maternity (and sickness) benefits were added to the Unemployment Insurance (UI) program in the early 1970s, with the provinces introducing provisions for unpaid maternity leave in the year or two following. When first introduced, the eligibility requirement for UI maternity benefits was a minimum of twenty weeks of insurable employment with benefits paid for fifteen weeks (after a two-week waiting period) at two-thirds of past wages up to a maximum of $150 per week (in 1971 dollars).70 By 1990, ten weeks of parental benefits were made available to birth mothers, partners, and adopting parents with partial income replacement. This legislation (Bill C-21) was the first to (1) recognize the rights of biological fathers to leave with income replacement to assist with caregiving functions and (2) treat biological fathers, adopting parents, and
66 See the cross-country comparisons provided in annual reviews undertaken by the International Parental Leave Policies and Research Network, online:
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biological mothers similarly in according them the same access to income replacement for parental care functions. By 1993, the UI program began to consider parental leave from a family perspective, enabling qualifying parents to share parental leave benefits. In 1994, the income replacement rate was reduced to 55 percent of maximum insurable earnings, which is the level that remains in effect today. Arguably, the most significant changes occurred in January 2001. Parental benefits were extended from ten weeks to thirty-five weeks, allowing biological mothers who wished to do so to take up to fifty weeks of paid leave (fifteen weeks of maternity leave followed by thirty-five weeks of parental leave). At least equally important was the ability for parents to share the parental leave in any way they wished, thus enabling fathers to take up to the full 35 weeks, to share this equally, etc. The two- week waiting period was waived for parents who wished to share benefits in the hopes of removing a disincentive for fathers taking some parental leave. An additional change was a reduction in the number of insured hours required to qualify for benefits from 700 hours to 600 hours.71 Additional efforts to improve parental benefits and allow more flexibility for parents led to reducing the two-week waiting period to one week in 2016 and, beginning in 2018, providing the option of choosing either standard parental benefits or extended benefits—spreading the twelve months of (maternity and parental) benefits over eighteen months at 33 percent of EI insurable earnings. 72 The 2018 federal budget, which was tabled on 27 February 2018, included a “use-it-or-lose-it parental sharing benefit”—a five- week additional benefit available to fathers/partners who share standard parental benefits or an additional eight weeks if extended parental benefits are utilized. This change, which is to come into effect in 2019, was introduced in hopes of “supporting equality in the home and the workplace” and allowing women to return to work sooner if they so choose.73 Research on the effects of Canada’s maternity and parental leave policies has concentrated mostly on coverage and duration and, more recently, on
71 Ibid. 72 Government of Canada, EI Maternity and Parental Benefits - Overview (Ottawa: Government of Canada, 2018), online:
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fathers’ uptake of parental leave. 74 Although Canadian policies seem generous in international comparisons (at least in the duration of leave and benefits available), there is growing concern about a motherhood penalty in earnings and career advancement for mothers who take longer periods of time off work and continued concern about the level of income replacement available. Moreover, the continued lack of affordable, high-quality childcare for very young children in most of Canada remains a serious problem that limits women’s full participation in the labour force and adds to the stress that parents experience when combining work and parenting.75 The Québec Comparison In 2006, Québec withdrew from the federal maternity/parental benefit program to initiate its own policy approach (QPIP) that combines access to job-protected leave and generous income replacement. 76 Its key features encompass:
the inclusion of most new parents who have insurable earnings from either regular employment or self-employment with no minimum number of hours or weeks worked; more generous levels of income replacement for parents on leave (70 or 75 percent of earnings up to a maximum of $74,000 in 2018); basic and special plan options have been available since QPIP’s inception, offering parents a choice between slightly longer leaves at a lower rate of income replacement or a somewhat shorter period of leave with a higher level of income replacement; and a designated paternity leave option (three or five weeks at a reasonably high-income replacement rate) in addition to the option of sharing parental leave with the mother.77
74 Lindsey McKay, Katherine Marshall & Andrea Doucet, “Fathers and Parental Leave in Canada: Policies and Practices” in Jessica Ball & Kerry Daly, eds, Engaging Fathers in Social Change: Lessons from Canada (Vancouver: UBC Press, 2012) 207; Lindsey McKay, Sophie Mathieu & Andrea Doucet, “Parental-Leave Rich and Parental Leave- Poor: Inequality in Canadian Labour Market Based Leave Policies” (2016) 58:4 Journal of Industrial Relations 543. 75 Craig Alexander et al, Ready for Life: A Socio-Economic Analysis of Early Childhood Education and Care (Ottawa: Conference Board of Canada, 2017); Canadian Centre for Policy Alternatives, A Growing Concern: 2016 Child Care Fees in Canada’s Big Cities (Ottawa: Canadian Centre for Policy Alternatives, 2016). 76 For more information, see
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Table 2 illustrates the differences between the EI and QPIP programs.
Table 2. Parental leave in Canada and in Québec, 2018 Canada EI Québec Basic Québec Special Plan Plan
Eligibility 600 hours $2,000 earnings $2,000 earnings
As of 2011, Self-employed requires opting Covered Covered workers in 1 year previous 1 week per Waiting period None None couple Weeks by wage-replacement rate (% of average earnings) 15 weeks at Maternity 18 weeks at 70% 15 weeks at 75% 55% Paternity None 5 weeks at 70% 3 weeks at 75% 35 weeks at 32 weeks (7 at Parental (shared) 55% or 61 70% + 25 25 weeks at 75% weeks at 33% weeks at 55%) Total maximum 61 weeks 55 weeks 43 weeks weeks per couple (12 weeks at Adoption (shared) 35 at 55% 70% + 25 at 28 weeks at 75% 55%) Low income (net annual income Up to 80% Up to 80% Up to 80% <$25,921) Maximum insurable earnings $51,700 $ 74,000 $ 74,000 (2018) $547/week for Maximum 35 weeks; $996.14/week amount per week $ 1,067.30 at 75% $328/week for at 70% (2018) 61 weeks Source: Lindsey McKay, Sophie Mathieu & Andrea Doucet, “Parental-Leave Rich and Parental Leave-Poor: Inequality in Canadian Labour Market Based Leave Policies” (2016) 58:4 Journal of Industrial Relations 543 (updated as per Employment and Social Development Canada and QPIP websites for 2018).
The Québec policy has resulted in a higher percentage of recent mothers qualifying for, and receiving, maternity and parental benefits than
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occurs under EI provisions, as well as very different patterns of leave taking among fathers in Québec compared to the rest of Canada. 78 According to Statistics Canada, the percentage of fathers in Québec reporting that they claimed or intended to claim benefits for parental/paternity leave rose in 2016 to 80 percent, up from about 28 percent in 2005 when QPIP started. Outside of Québec, 12.9 percent of fathers claimed or intended to claim some portion of the EI parental leave benefit.79 Data from the most recent Employment Insurance Monitoring and Assessment Report indicate that while only 15 percent of fathers take a portion of parental leave outside Québec, their EI covered leave is longer, averaging 10.3 weeks when men shared parental leave with their partner and 26.8 weeks when they did not share EI benefits.80 In addition, several studies suggest that the combination of QPIP and Québec’s universal affordable childcare have led to a significant increase in women’s labour force participation in that province, associated with both increased family income and higher income tax receipts for the province.81 Further policy changes to improve the accessibility and effectiveness of the current EI parental benefits approach, including offering more flexibility, are under consideration. One of the issues of most significance is extending access to parents who do not qualify either for job-protected maternity/parental leave or for EI leave benefits or both. The population
78 According to Statistics Canada in 2016, the share of new mothers with insurable employment in Québec was 86.5% and 96.5% of insured recent mothers received QPIP maternity or parental benefits. In the rest of Canada, 75.5% of recent mothers had insurable employment, and 91.1% of those received EI benefits. Statistics Canada, “Employment Insurance Coverage Survey, 2016,” The Daily (15 December 2017). 79 Ibid. 80 Employment and Social Development Canada, 2016-17 Employment Insurance Monitoring and Assessment Report (2018), Chart 37, online:
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of “parental-leave poor” mothers who do not qualify for leave and/or benefits, as described by Lindsey McKay, Sophie Mathieu, and Andrea Doucet, is more likely to include low earners, students, those in precarious or irregular work, part-time workers, and the self-employed. 82 Self- employed parents can opt into the EI program and qualify for benefits if they do so a year in advance, but the proportion who do is small. According to McKay, Mathieu, and Doucet, these design features perpetuate social class inequality as a by-product of exclusionary eligibility criteria. The QPIP program covers a larger proportion of low-income earners and includes the self-employed by design. Jennifer Robson, in her recent analysis of possible changes to the parental leave benefit program, has further suggested increasing targeted help for low and modest income parents through the Family Supplement, better coordinating EI benefits with income-tested federal and provincial child benefits, and providing incentives to more employers to top up EI benefits (currently estimated at about 22.5 percent of EI claimants).83 She has also questioned whether parental leave benefits, and other special benefits, such as compassionate care benefits, should be housed within the EI program, which was not designed for the range of social policy purposes it now holds.84 B. Compassionate Care, Caregiving Leave, and Benefits Policy-makers started to become aware of the challenges facing employees with a broader range of care responsibilities in the late 1990s. In January 2004, the federal government introduced a new leave-and-benefit program, building on the existing EI architecture. The Compassionate Care program comprises two key elements. Initially, those eligible for compassionate care leave could take a maximum of eight weeks of job- protected leave to provide care or support to a family member who was ‘gravely ill’ and had a significant risk of death within twenty-six weeks. The EI compassionate care benefit provided up to six weeks of leave to employees absent from work to provide care or support to a family member with a serious medical condition who has a significant risk of
82 McKay, Mathieu & Doucet, supra note 49. 83 In the period between 2000 and 2008, roughly 20% of new mothers who received EI maternity or parental leave benefits received a supplementary top-up from their employer. Supplementary top-up policies may occur as a result of collective bargaining or industry- wide practices. Receiving a top-up in 2008 was far more common among new parents employed in the public than the private sector, those in unionized and in larger workplaces and in Québec. Katherine Marshall, “Employer Top-Ups” in Statistics Canada, Perspectives on Labour and Income, Catalogue No 750001-X (Ottawa: Statistics Canada, 2010). 84 Robson, supra note 53.
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death within twenty-six weeks; and a compassionate care benefit, which is a new type of special EI benefit that provided up to six weeks of partial income replacement at the same rate as other EI benefits (55 percent of pre-leave earnings to a maximum).85 By 2014, all provinces and territories had followed suit in amending their labour standards to ensure all workers had the right to the leave. The EI program has since been modified, first by removing a restriction on eligibility to those caring for close family members only, and, in 2016, extending the leave to twenty-six weeks.86 Formal evaluations of the original compassionate care leave and benefits program and commentaries from non-governmental organizations representing caregivers and care receivers exposed a number of shortcomings. One was a lack of awareness of the existence of the program among key stakeholders: employed caregivers, physicians who are required to provide medical evidence of the need for end-of-life care for the care receiver, and palliative care providers and social workers who would be in a position to inform caregivers of their eligibility for the leave and benefit. This lack of awareness is a primary reason for the consistently low participation rate in the program (less than 4 percent of what was expected in the first two years of the program).87 The need for medical proof of imminent death of the care receiver also represents a barrier to access. Family caregivers may be reluctant to acknowledge and seek evidence that their loved one may be dying. But Nicholas Christakis also raises questions about the willingness and ability of physicians to provide official prognoses of imminent death, reporting that physicians feel poorly prepared, find it stressful, and worry about their patients’ reaction if their prognosis is wrong.88 The limited period of leave and benefits provided by the program (until recently) was also a major deterrent to potential applicants,89 being
85 Katie Osborne & Naomi Margo, Health Council of Canada, Analysis and Evaluation: The Compassionate Care Benefit (Toronto: Health Council of Canada, 2005), online: 28 FLEXIBLE WORK ARRANGEMENTS VOL. 14 “far from sufficient to adequately care for a dying family member.”90 This constraint has been addressed with amendments to the Employment Insurance Act in 2015, which took effect in January 2016, that extended the maximum length of leave from six to twenty-six weeks, beginning with workers employed in federally regulated industries. 91 The low income replacement rate (55 percent of pre-leave earnings, to a maximum), which is common to all Canadian EI programs, and lack of coverage for self- employed caregivers are further barriers to access.92 Finally, it remains the case that many caregiving employees require time off to care for and assist an ill family member who is not at risk of dying, but who has a serious, chronic illness, requires surgery or other procedures, or suffers a fall. Since this common situations fall outside of the current parameters of this benefit, it remains of limited use to many in need. Budget 2018 introduced two new benefits to address this concern: the Family Caregiver Benefit—Adults and a Family Caregiver Benefit for Parents of Critically Ill Children. The former “allows eligible caregivers to receive up to 15 weeks of financial assistance to provide care or support to a critically ill or injured adult.” The benefit is available to care for “anyone 18 or over whose baseline state of health has changed significantly and whose life is at risk as a result of illness or injury. They must also need the care or support of at least one caregiver … If the person is already living with a chronic medical condition, caregivers are not eligible for the Benefit unless the person’s health changes significantly because of a new and acute life-threatening event.”93 While the intent was to add a new benefit that offers support to those caring for someone in situations other than end of life care, this language appears to still refer to situations where one’s life is at risk. Hence, caregivers to those who require care as a result of an illness, a fall, or a non-life threatening, but serious condition and their employers may not see this as helpful or appropriate for them. This new benefit is in addition to the existing Compassionate Care Benefit. In order for employees to access matching unpaid periods of leave, provinces and territories will need to change their Still_Not_There_June_2005.pdf>. 90 Allison Williams et al, University of Victoria Centre on Aging, Evaluating Canada’s Compassionate Care Benefits: From the Perspective of Family Caregivers (Victoria: University of Victoria Centre on Aging, 2010). 91 See Employment Insurance Act, SC 1996, c 23, s 12(3)(d); Employment Insurance Act, SC 1996, c 23, s 12(3)(d), s 12 (from 2013-16 (archived)). 92 Williams et al, supra note 88. 93 Economic and Social Development Canada, Family Caregiver Benefits for Adults - Overview (Ottawa: Government of Canada, 2018), online: VOL. 14 JOURNAL OF LAW & EQUALITY 29 existing employment standards legislation. It will also take some time for employers and the public to become aware of this new option. While the intent of the Compassionate Care Leave and Benefit program is laudable, it remains very much underused. 94 The recent introduction of the Family Caregiver Benefit—Adults does not appear to address the criticism that many caregivers need leave to provide care and assistance in non-life-threatening circumstances. This recent change will be helpful to some, but other caregivers might appreciate a period of part- time or reduced-hours work or other more flexible options that could be used without financial penalty. IV. A PLEA FOR A COMPREHENSIVE, MULTI-PRONGED APPROACH In summary, employees can benefit from various types of support to help them more effectively reconcile their commitments to their work and to their families. FWAs, when available, along with supervisor support, have been shown to reduce work–family conflict, improve job satisfaction, reduce job turnover, and even improve employee health.95 Interventions that increase control over work time have been shown to improve both work and family outcomes. 96 Research shows, however, that many employers are unaware of their employees’ interest in, and need for, flexible work options, including reduced hours for at least a temporary period to accommodate caregiving demands. Other research has identified a policy-to-practice implementation gap: flexible work policies and practices that are theoretically available according to human resource policies are not made available to those employees who could most benefit from using them. Implementation might be limited by the lack of employer or supervisor support for employees using flexible options, insecurity or lack of knowledge among supervisors about how to support and assess employee performance, lack of employee awareness, or employee concern 94 Economic and Social Development Canada, Employment Insurance Monitoring and Assessment Report 2015-2016 (Ottawa: Government of Canada, 2017), ch II, online: 30 FLEXIBLE WORK ARRANGEMENTS VOL. 14 that requesting accommodation of their caregiving needs may threaten their employment or career advancement.97 As the number of employees with caregiving responsibilities grows, the need to address their concerns grows as well. Managers and supervisors have identified the need for additional resources and guidelines for managing employees with adult care responsibilities (and other employees who may have chronic or episodic health conditions).98 Our examination of maternity/parental and compassionate care policies in Canada based on a combination of employment standards legislation and EI benefits identifies the strengths and weaknesses of these regulatory approaches. As public policies, they provide employees with the right to job-protected leave and partial income replacement and impose obligations on employers. They also reflect and create social norms. Design issues remain a concern with potential for improvement evident in our analysis. Of particular concern is the exclusion of more vulnerable workers, particularly the growing number who are involved in precarious employment situations associated with low pay, limited benefits, and a lack of social protections, including access to leave and income replacement. We have not addressed other mechanisms that might be used to address the reconciliation of work and care. Some of these are discussed in the other contributions to this special issue. We strongly agree with those who highlight the importance of considering a multi-pronged approach with a range of resources to address work–family issues more comprehensively. 99 These resources range from standards of the 97 Ellen Ernst Kossek & Rebecca J Thompson, “Workplace Flexibility: Integrating Employer and Employee Perspectives to Close the Research-Practice Implementation Gap” in Tammy D Allen & Lillian T Eby, eds, The Oxford Handbook of Work and Family (New York: Oxford University Press, 2016). 98 Lero et al, supra note 37. One means of providing such information is through the development of International Organization of Standardization-type standards that can provide information and guidance to employers and human resource professionals. Two examples developed by the Canadian Standards Association with the involvement of multiple stakeholders are the voluntary standard on psychological health and safety in the workplace sponsored by the Mental Health Commission of Canada and a recently released voluntary standard on carer-inclusive and accommodating organizations (Canadian Standards Association, National Standard of Canada for Psychological Health and Safety in the Workplace, and Carer-Inclusive and Accommodating Organizations, Doc Can/CSA Z 1003-13 BNQ (2017), Standard B701-17.) 99 Stéphanie Bernstein, “Addressing Work-Family Conflict: The Limits of Individualized Approaches” (Paper presented at a forum on Frontiers of Human Rights in Canadian Workplaces, Toronto, Ontario, 16 September 2016) [unpublished]; Stéphanie Bernstein & Mathilde Valentini, “Redefining the ‘Normal’ Worker: Law and Policy Choices for VOL. 14 JOURNAL OF LAW & EQUALITY 31 International Organization for Standardization and internal workplace policies100 to collectively bargained standards, complemented by statutory provisions (employment standards) and legal obligations such as anti- discrimination policies and the duty to accommodate that are subject to enforcement through Human Rights Tribunals.101 Finally, we note, as does Stéphanie Bernstein, that a multi-pronged approach includes other policies and programs outside of those specific to the workplace that are important to enable employees to provide responsive care and support to family members and that create and sustain a more equitable approach to our common goals.102 These policies and programs include coherent and comprehensive social policies in such areas as childcare, home care, income support, and equity measures. 103 Addressing deficiencies in these areas will be essential as we continue to adapt to dramatic changes in our economy and labour markets while ensuring that we continue to provide the kind of responsive, nurturing care that we may hope one day to receive ourselves. Work-Family Balance in Canada” (2017) 27:3 New Solutions: A Journal of Environmental and Occupational Health Policy 1. 100 See Sheila Osborne Brown, “Discrimination and Family Status: The Test, the Continuing Debate, and the Accommodation Conversation,” in this issue for practical advice on this score. 101 Elizabeth Shilton, “Family Status Discrimination: ‘Disruption and Great Mischief’ or Bridge over the Work-Family Divide?”; Lyle Kanee and Adam Czembrowski, “Family Status Discrimination and the Obligation to Self-Accommodate”; and Sheila Osborne Brown, “Discrimination and Family Status: The Test, the Continuing Debate, and the Accommodation Conversation,” discuss the complexities of using the Human Rights Codes elsewhere in this special issue. 102 Bernstein, supra note 97. 103 On the importance of publicly funded childcare as part of the mix, see Kate Bezanson, “Feminism, Federalism and Families: Canada’s Mixed Social Policy Architecture” in this issue. Family Status Discrimination: “Disruption and Great Mischief” or Bridge over the Work-Family Divide? Elizabeth Shilton ABSTRACT This article examines a distinctive Canadian approach to alleviating work-family conflict: human rights laws that prohibit employment discrimination based on family status. These laws challenge management’s historic right to organize the workplace without regard to workers’ family care responsibilities; properly applied, they should require employers to change or adjust work rules that create unnecessary impediments to family care. However, Canadian adjudicators have been largely persuaded that applying human rights law in this fashion would cause “disruption and great mischief”. To avoid this outcome, they have developed legal tests that protect employers from having to justify conventional workplace practices against standard human rights principles. Such tests operate to limit findings of family status discrimination to the most egregious individual cases. They also impede systemic change and reinforce gender hierarchies in workplaces and families, ignoring the links between work-family conflict and women’s economic, social, and cultural subordination. Under these circumstances, proactive policy approaches to work-family conflict are desirable, but litigation still has a role in promoting gender-inclusive systemic change. There are a number of strategies for family status litigation that are relatively unexplored, in particular the possibility that systemic complaints could circumvent the high prima facie thresholds that operate as barriers to invoking the duty to accommodate, offering opportunities both to develop new legal tests that expose the discriminatory impact of many family-unfriendly work rules and to craft more effective and gender- equal remedies. Senior Fellow, Centre for Law in the Contemporary Workplace, Faculty of Law, Queen’s University, Kingston, ON. Earlier versions of this article were presented at the Labour Law Research Network’s Inaugural Conference, Universitat Pompeu Fabra, Barcelona, 13-15 June 2013, and at Law and Family Care: A Symposium, York University, 17-18 February 2017. 34 FAMILY STATUS DISCRIMINATION VOL. 14 [T]he gendered separation of social reproduction from economic production constitutes the principal institutional basis for women’s subordination in capitalist societies. So for feminism, there can be no more central issue than this. — Sarah Leonard and Nancy Fraser, “Capitalism’s Crisis of Care”1 The reconciliation of paid work and unpaid care is arguably the most pressing problem currently facing labour law. — Nicole Busby, A Right to Care?2 I. INTRODUCTION Family care has only recently been acknowledged as a workplace issue. Within the gendered logic of the male breadwinner family, dominant throughout most of the twentieth century, family care and paid work have belonged in strictly separate spheres. Family care was women’s work, relegated to the (unpaid) sphere of social reproduction. Paid work was men’s work, generating the financial means to support the family.3 The male breadwinner model was never as all-pervasive as its myth.4 Nevertheless, it described many working households in Canada across class lines, and its powerful narrative buttressed the allocation of unpaid 1 Sarah Leonard & Nancy Fraser, “Capitalism’s Crisis of Care: A Conversation with Nancy Fraser,” Dissent (Fall 2016) 30 at 31. 2 Nicole Busby, A Right to Care?: Unpaid Work in European Employment Law (Oxford: Oxford University Press, 2011) at 1. 3 This point has been made by countless feminist scholars. See e.g. Joanne Conaghan & Kerry Rittich, eds, Labour Law, Work and the Family: Critical and Comparative Perspectives (Oxford: Oxford University Press, 2005); Judy Fudge & Rosemary Owens, eds, Precarious Work, Women and the New Economy: The Challenge to Legal Norms (Oxford: Hart Publishing, 2006); Meg Luxton, “Feminist Political Economy in Canada and the Politics of Social Reproduction” in Kate Bezanson & Meg Luxton, eds, Social Reproduction: Feminist Political Economy Challenges Neo-Liberalism (Montreal and Kingston: McGill-Queen’s University Press, 2006) 11 at 23; Nicole Busby & Grace James, eds, Families, Care-giving and Paid Work: Challenging Labour Law in the 21st Century (Cheltenham, UK: Edward Elgar, 2011). 4 It fails to account for many significant social and economic phenomena including single-parent families, the periodic unemployment that has always been a feature of capitalism, and the impact of racism on black and Indigenous family life. See Drucilla K Barker & Susan F Feiner, Liberating Economics: Feminist Perspectives on Families, Work and Globalisation (Ann Arbor: University of Michigan Press, 2004) ch 2. VOL. 14 JOURNAL OF LAW & EQUALITY 35 care work to women even in households that did not fit its economic mould. Under nineteenth- and twentieth-century industrial capitalism, it provided the essential foundation for the iron rule that family-care issues should not cross the threshold of the workplace. In twenty-first-century Canada, the male breadwinner family has largely vanished along with the idea of the “family wage”; women are almost as likely as men to belong to the paid workforce.5 Two constants remain, however. Employers continue to demand an “unencumbered worker,”6 along with the right to organize work without regard to workers’ care obligations. And gender roles within families have been slow to change. Care work still needs to be done, and women still bear most of the practical responsibility for doing it.7 In consequence, women are forced to manage family care without impinging on their work obligations. Their strategies—euphemistically labelled “choices”—often include part-time and precarious forms of work that typically come with lower wages, fewer benefits, fewer promotional opportunities, and minimal or no retirement pensions. The impact on women’s economic welfare is compounded by stereotypical assumptions that women do not merit or want more responsible, higher-paying jobs because they will inevitably prioritize family over work. The unequal burden of family care creates and reinforces women’s continuing inequality both inside and outside the workplace.8 In this context, I examine a Canadian legal experiment in reconciling the work-family conflict: prohibiting employment discrimination based on 5 Canadian women’s participation in the labour market increased from 21.6 percent to 82.0 percent between 1950 and 2015. Over the same period, men’s participation decreased from 97.1 percent to 90.7 percent. See Melissa Moyser, “Women and Paid Work” in Statistics Canada, Women in Canada: A Gender-based Statistical Report, 7th ed (Ottawa: Statistics Canada, 2017), online: 36 FAMILY STATUS DISCRIMINATION VOL. 14 “family status.” This Canadian approach has two distinctive features. In contrast to the United States and the United Kingdom, where “family responsibility” discrimination claims must be litigated as sex discrimination claims, Canadian workers can bring such claims grounded explicitly on family status.9 In contrast to Australia, the Canadian prohibition reaches not just direct discrimination but also indirect discrimination, which extends its reach well beyond workplace decisions and practices that make explicit distinctions on the basis of family status.10 Prohibiting family status discrimination engages the legal responsibility of employers in how workers negotiate the boundary between work and family care. It thus has radical potential to disturb the distribution of power between employer and worker, particularly in matters like scheduling and work assignment. There is little evidence to date, however, that these laws have forced employers to modify systemic work practices that disadvantage women with family care obligations. Absent workplace change, the gendered allocation of family care work remains undisturbed. I begin with a brief review of the legislative history and early application of family status provisions in Canada. As the idea emerged that “family status” encompasses family care obligations, it was rightly perceived as a threat to the power of employers to demand that workers resolve work-family conflicts outside the workplace. Adjudicators have responded to this threat by developing onerous legal tests that erect high prima facie thresholds for employees seeking to establish family status discrimination. This approach protects employers from having to justify conventional workplace practices against standard human rights principles. It also helps obscure the gendered roots of the family care issue, reinforcing gender hierarchies in workplaces and families by forcing women to adopt gendered strategies for managing family care. Despite these limitations, family status litigation has been successful in securing accommodations for 9 The US federal Fair Housing Act, 42 USC §3601 (1988), was amended in 1988 to prohibit discrimination on the ground of “familial status” (defined as having children under eighteen in a household), but anti-discrimination legislation applicable to employment contains no parallel ground. For US law relevant to employment, see Joan C Williams & Stephanie Bornstein, “The Evolution of “FReD”: Family Responsibilities Discrimination and Developments in the Law of Stereotyping and Implicit Bias” (2008) 59:6 Hastings LJ 1311. For UK law, see Rachel Horton, “Care-Giving and Reasonable Accommodation in the UK” in Busby & James, supra note 3, 137. 10 Australia’s legislation prohibiting family status (“family responsibilities”) discrimination applies only to direct discrimination and only to dismissal. See Sara Charlesworth, “Law’s Response to the Reconciliation of Work and Care: The Australian Case” in Busby & James, supra note 3, 86 at 93. See also Olivia Smith, “Litigating Discrimination on Grounds of Family Status” (2014) 22:2 Fem Leg Stud 175, discussing Ireland. VOL. 14 JOURNAL OF LAW & EQUALITY 37 some individual workers. However, its more radical potential to contribute to gender-inclusive systemic change remains unexplored. II. THE LEGAL “BACKSTORY” The 1982 revision of Ontario’s Human Rights Code introduced the concept of family status discrimination into Canadian law.11 This revision also contained a new and explicit prohibition against what the code labelled “constructive discrimination” (otherwise called indirect, adverse effects or adverse impact discrimination). In theory, Ontario legislators should have understood the potential of these combined changes to challenge the entrenched right of employers to organize workplaces without regard to employees’ family care obligations. But there is little evidence that the impact of the new ground on workplaces and employment practices was ever on the legislative radar. Life Together, the important 1977 report of the Ontario Human Rights Commission that laid the basis for the 1982 code, discussed family status discrimination almost entirely as an issue in the rental housing market.12 Although family status discrimination was clearly prohibited in all social areas governed by the code, there is no evidence in the legislative debates or committee reports that Ontario legislators considered its possible impact on employment practices. Other Canadian jurisdictions seemed equally oblivious to the disruptive potential of the new ground in the realm of employment. The federal government introduced “family status” in 1983 simply to repair an obvious lack of symmetry between the French and English versions of the original human rights statute; the French version included the ground of “situation de famille” (but not “état matrimonial”), whereas the English version included “marital status” (but not “family status”). The defect was remedied by adding “état matrimonial” to the French version and “family status” to the English version.13 Several other Canadian jurisdictions 11 Now Human Rights Code, RSO 1990, c H 19, s 11 [OHRC]. A few years later, the Supreme Court of Canada confirmed that discrimination in Canadian law includes both direct and adverse impact discrimination. Ontario Human Rights Commission and O’Malley v Simpson-Sears Ltd, [1985] 2 SCR 536, 52 OR (2d) 799 [O’Malley]. In Cameron v Nel-Gor Castle Nursing Home (1984), 5 CHRR D/2170 at para 18333(4), 84 CLLC 17008 (Ont Bd of Inq). Peter A. Cumming, sitting as an Ontario Board of Inquiry, discusses the history of section 11 (then section 10) of the Ontario code and its relationship to O’Malley. 12 Ontario Human Rights Commission, Life Together: A Report on Human Rights in Ontario (Toronto: Ontario Human Rights Commission, 1977). 13 For a discussion of the federal legislative history, see Canada (Attorney General) v Mossop (1989), 10 CHRR D/6064 at para 4.54, 1989 CanLII 157 (CHRT); Canada 38 FAMILY STATUS DISCRIMINATION VOL. 14 subsequently added family status to the grounds in their codes, but neither their legislative history nor their statutory language discloses any common view on its meaning or implications.14 Ontario defined “family status” as “the status of being in a parent and child relationship,” a definition subsequently adopted in four other provinces.15 Alberta defined it as “the status of being related by blood, marriage or adoption.”16 Several codes, including the federal code, leave the term undefined.17 No code provides much guidance on how the term should be applied in the context of employment, particularly where what is at issue—as it almost always is in family status cases—is adverse impact rather than direct discrimination. Very few cases emerged in the early days to explore how the ground should be interpreted; those that did focused on whether “family status” could force the recognition of same-sex families18 and whether it protected particular relationships (being the daughter of X) in addition to abstract status (being a daughter).19 These cases are important in their own right, but they tell us little about the meaning of “family status” at the interface of work and family. In 2006, almost a quarter- century after the ground was initially adopted, the Ontario Human Rights (Attorney General) v Mossop, [1993] 1 SCR 554 at 617-21, 100 DLR (4th) 658 (L’Heureux-Dubé J) [Mossop]. 14 British Columbia Law Institute, Human Rights and Family Responsibilities: Family Status Discrimination under Human Rights Law in British Columbia and Canada, BCLI Study Paper no 5 (15 September 2012) at 26, Figure 3, online: Commission was still describing family status as “one of the least understood grounds of the … Code.”20 III. FAMILY STATUS AND FAMILY CARE: RAISING THE THRESHOLD Early cases focused on bare “status” rather than on the accoutrements of status and lay no groundwork for linking family care to family status. In subsequent phases of family status litigation, however, family care issues became the primary focus, as women workers raised ambitious claims challenging standard workplace rules and practices as obstacles to the performance of family care functions and, therefore, as discrimination on the basis of family status. Such cases forced adjudicators to confront two key questions: whether family care obligations are encompassed within family status and, if so, what obligations are protected within a legal framework that prohibits not just direct, but also adverse impact, discrimination. O’Malley v Simpson Sears established the basic legal test for adverse impact discrimination, holding that a prima facie case arises where an employer for genuine business reasons adopts a rule or standard which is on its face neutral, and which will apply equally to all employees, but which has a discriminatory effect upon a prohibited ground on one employee or group of employees in that it imposes, because of some special characteristic of the employee or group, obligations, penalties, or restrictive conditions not imposed on other members of the work force.21 Once a prima facie case is proved, an employer is liable unless it can justify its conduct by establishing a statutory defence or otherwise demonstrating that it could not accommodate the employee without undue hardship.22 Some fifteen years after O’Malley, in British Columbia (Public Service Employee Relations Commission v British Columbia Government Employees’ Union (more commonly known as Meiorin), the Court elaborated on the justification defence, holding that a work rule or standard that creates discriminatory effects can prevail only if the employer can 20 Ontario Human Rights Commission, The Costs of Caring: Report on the Consultation on Discrimination on the Basis of Family Status (29 November 2006) at 4, online: 40 FAMILY STATUS DISCRIMINATION VOL. 14 show that: (1) the rule was adopted for a purpose rationally connected to the performance of the work; (2) the employer has an honest and good faith belief that it is necessary to fulfill a “legitimate work-related purpose”; and (3) the rule is reasonably necessary to accomplish that purpose.23 The Court emphasized that to meet the third branch of the test “it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.”24 The O’Malley/Meiorin rules apply to all prohibited grounds of discrimination. With respect to family status, however, courts and tribunals quickly perceived that a literal application of those rules posed a significant threat to organizational principles presupposing an “unencumbered worker.” Containment strategies began to emerge that restated the rule for establishing a prima facie case in family status cases. The evolving case law crystalized around two competing tests: a test generated early in federal jurisdiction, which I will call simply the “federal test,”25 and a somewhat more onerous test arising in British Columbia, which is known as the “Campbell River test.”26 The federal test was first articulated in Brown v Department of National Revenue (Customs and Excise), a case dealing with sex and family status discrimination claims filed by Donna Brown, a customs inspector.27 Brown normally worked alternating shifts but sought a fixed day shift, first to accommodate a difficult pregnancy and subsequently to accommodate childcare obligations since she was unable to find third- party childcare flexible enough to adjust to both her own alternating shifts and those of her husband, a police officer.28 The employer failed to move quickly or appropriately on the first request and flatly refused the second. There was ample evidence that Brown’s supervisor was animated by both gender bias and personal animus, and the Canadian Human Right Tribunal (CHRT) upheld the sex discrimination complaint. In addition, without 23 British Columbia (Public Service Employee Relations Commission v British Columbia Government Employees’ Union, [1999] 3 SCR 3, 176 DLR (4th) 1 at para 54 [Meiorin]. While the case concerned only one specific justification, the “bona fide occupational requirement” defence under BC human rights legislation, it is now broadly adapted to apply to any justification defence. See e.g. Moore, supra note 21 at para 49. 24 Meiorin, supra note 23. 25 The early federal test has also been labelled the Brown test and the Hoyt test. 26 Health Sciences Association of BC v Campbell River and North Island Transition Society, 2004 BCCA 260, 28 BCLR (4th) 292 [Campbell River CA]; affirming Re Campbell River & North Island Transition Society and Health Sciences Association of BC (2002), 110 LAC (4th) 289, 2002 CarswellBC 3653 [Campbell River Arb]. 27 (1993), 19 CHRR D/391993, 1993 CanLII 683 (CHRT). 28 Ibid at 6. VOL. 14 JOURNAL OF LAW & EQUALITY 41 much discussion, it held that “family status” encompassed parental obligations with respect to the care and nurturing of children. In its view, the federal code imposed “a clear duty on the part of the employer to facilitate and accommodate” the employee’s efforts to balance work with family obligations.29 Applying the O’Malley test, the CHRT found that the employer’s scheduling rule did not permit Brown “to participate equally and fully in employment with her employer” and, at the same time, carry out her childcare duties and obligations.30 The employer failed to demonstrate that it had fulfilled its duty to accommodate to the point of undue hardship. The CHRT found that Brown’s supervisor had “elected to allow his own personal dislike of the Complainant to cloud his judgment” and had failed to consider several available accommodations.31 Along with individual remedies for Brown, the employer was ordered to submit proof to the commission that it had “an appropriate policy of accommodation for employee transfer.”32 A decade later, the British Columbia Court of Appeal confronted its first family status claim in Health Sciences Association of British Columbia v Campbell River & North Island Transition Society, a case that reached the court through labour arbitration rather than human rights channels.33 It involved an employee, Shelley Howard, who held a part- time position as a youth counsellor with a non-profit organization. Howard’s work schedule permitted her to provide after-school care to her son, whose attention deficit hyperactivity disorder and Tourette’s syndrome were linked to serious behavioural difficulties. For program- related reasons, Howard’s employer placed her on a new schedule, extending her workday. She filed a grievance claiming that the employer owed a duty to accommodate her childcare obligations. The arbitrator accepted the argument that “family status” under the BC code governed parent-child relationships,34 but he did not accept that it encompassed childcare obligations.35 As he saw it, the legislation protected parents only from employment decisions based on their status as parents (that is, the fact that they were parents);36 the obligations that come with that status 29 Ibid at 20. 30 Ibid at 15, 20. 31 Ibid at 21. There was evidence that his “personal dislike” had its roots in the fact that Brown had pushed back against his earlier sexual harassment. 32 Ibid at 22-3. 33 Campbell River CA, supra note 26. 34 Campbell River Arb, supra note 26 at para 39. 35 Ibid at para 45, 50. 36 Ibid at para 50-1. 42 FAMILY STATUS DISCRIMINATION VOL. 14 remain solely the responsibility of the parents.37 Accordingly, he dismissed the grievance. The Court of Appeal took a more expansive view of family status, accepting that it included childcare responsibilities. However, the court rejected the Brown test, which, in the court’s view, moved much too quickly to the issue of the employer’s duty to accommodate, without focusing rigorously enough on whether a prima facie case of discrimination had first been made out. As the court put it, the CHRT “seem[s] to hold that there is prima facie discrimination whenever there is a conflict between a job requirement and a family obligation.”38 For the court, this was an “overly broad definition … that would have the potential to cause disruption and great mischief in the workplace.”39 The court held that absent bad faith or some overriding contractual obligation, “a prima facie case of discrimination is made out when a change in a term or condition of employment imposed by an employer results in a serious interference with a substantial parental or other family duty or obligation of the employee.”40 While Howard’s case crossed this onerous threshold, the court observed that “in the vast majority of situations in which there is a conflict between a work requirement and a family obligation it would be difficult to make out a prima facie case.”41 Meanwhile, back in federal jurisdiction, employers took heart from the BC decision and were now attempting to persuade the CHRT to abandon its own approach in favour of the Campbell River test. The CHRT considered this argument in Hoyt v Canadian National Railway, a case involving complaints by Catherine Hoyt that Canadian National Railway (CN) had failed to accommodate both her pregnancy and her parental obligations.42 Hoyt held an arduous yard conductor job at CN’s Edmonton terminal, with responsibility for marshalling out-of-service trains. Yard conductors worked shifts and were required to wear a piece of safety equipment called a belt pack. When Hoyt became pregnant, she began to experience pain performing her job, and her doctor certified that she should work regular hours, avoid hazards and particularly strenuous 37 Ibid at para 51, 57. 38 Campbell River CA, supra note 26 at para 35. The court identified the same flaw in Woiden v Lynn (2002), 43 CHRR D/296, 2002 CanLII 8171, a decision of the Canadian Human Right Tribunal (CHRT) finding that scheduled work hours that clashed with the childcare obligations of a single parent triggered a duty to accommodate. 39 Campbell River CA, supra note 26 at para 38. 40 Ibid at para 39 [emphasis added]. 41 Ibid. The court remitted the matter to the arbitrator to determine whether the employer’s justification defence passed the Meiorin test. 42 Hoyt v Canadian National Railway, 2006 CHRT 33 at para 1, [2006] CHRD No 33. VOL. 14 JOURNAL OF LAW & EQUALITY 43 activities, and not wear a belt pack.43 Despite persistent requests from Hoyt and her union, it took CN some three and a half months to come up with suitable accommodation, during which time she remained on unpaid leave.44 Hoyt was eventually offered a Tuesday-to-Saturday driving assignment that successfully addressed her pregnancy issues but created difficulties with childcare arrangements for her two year old.45 These difficulties could have been resolved by a relatively simple adjustment to Hoyt’s driving schedule, which would have relieved some of her Saturday work. CN refused to make that adjustment. The CHRT sustained both of Hoyt’s complaints.46 On the family status issue, the tribunal refused to apply the Campbell River test. In the CHRT’s view, it was “inappropriate” to “select out one prohibited ground of discrimination for a more restrictive definition” because of concerns about workplace disruption; such concerns should be taken into account only at the stage of assessing business necessity and undue hardship, where the onus lay on the employer.47 Applying the Brown test, the CHRT found prima facie family status discrimination and failure to accommodate, pointedly observing that Hoyt’s predecessor in the driving position had worked a Monday-to-Friday shift.48 Remedies included an order that CN take measures, in consultation with the Commission, to ensure that its employees understood and properly applied its accommodation policy. CN had difficulty absorbing the lesson of Hoyt. In 2010, it found itself once again before the CHRT in a trilogy of family status discrimination cases involving three women employed as conductors, Denise Seeley, Cindy Richards, and Kasha Whyte. They had all been on a very lengthy layoff but were subject under their collective agreement to a type of recall that required them to move on short notice for temporary, but indefinite, periods from their home base to other bases in the region. Failure to accept such a recall would result in termination. In February 2005, all three received a recall notice ordering them to report from their home base in 43 Ibid at para 25. 44 Ibid at para 35. 45 Ibid at paras 37-46. 46 Ibid at paras 67, 86-90. The tribunal upheld the sex discrimination complaint in part on the ground that Canadian National Railway (CN) treated the request for pregnancy accommodation less favourably than other accommodation requests. In addition, it found that the employer did not have “an honest and good faith belief” that its refusal to accommodate Hoyt was necessary to fulfill a legitimate business objective; in other words, CN did not pass Step 2 of the Meiorin test. This comes very close to a finding of intentional discrimination. 47 Ibid at paras 119-21. 48 Ibid at paras 127-29. 44 FAMILY STATUS DISCRIMINATION VOL. 14 Jasper, Alberta, to Vancouver, British Columbia, within fifteen days. The recall created serious childcare problems for all three. Two were single parents; one of them had complicated custody arrangements, and the other had a child with disabilities. The third was married to a CN locomotive engineer who worked shifts. All three women explained their childcare difficulties and requested relief from the recall order. Despite its comprehensive accommodation policy, CN took the position that employers had no duty to accommodate childcare issues. The women were terminated when they rejected the recall. Their grievances were dismissed by an arbitrator who shared the employer’s view of its legal responsibilities: “[W]ith respect to issues such as childcare the onus remains upon the employee, and not the employer, to ensure that familial obligations do not interfere with the basic obligations of the employment contract.”49 The three women then filed human rights complaints.50 The CHRT rejected CN’s argument that the “[c]omplainant’s situation [was] a personal choice not to abide by her professional obligations in order to prioritize other aspects of her life.”51 Instead, it applied the test developed in Brown, holding that because CN’s work rule prevented the women from fulfilling their duties and obligations as parents and, at the same time, “participat[ing] equally and fully in employment with CN,” the onus lay on CN “to demonstrate that the prima facie discriminatory standard or action it adopted is a bona fide occupational requirement.”52 Predictably, the CHRT concluded that CN had failed to meet its onus, finding that it had not considered the complainants’ individual circumstances and had made no effort to address their requests for accommodation. 49 Canadian National Railway Co and UTU (Whyte) (Re) (2006), 151 LAC (4th) 328 at para 18. The Whyte decision is also reported at Canadian Railway Office of Arbitration & Dispute Resolution, Case no 3549 (12 April 2006), online: CN applied for judicial review of Canada (Attorney General) v Seeley, framing the issue starkly: “CN submits that the underlying issue in this proceeding is whether the question of balancing obligations of family life and employment duties will be transferred from the home to the work place.”53 The case ultimately made its way up to the Federal Court of Appeal (FCA), where it was heard together with another family status case, Johnstone v Canadian Border Services Agency.54 That case involved Fiona Johnstone’s request for an adjustment to her work schedule to accommodate caring for her two small children. As a full-time customs inspector employed by the Canada Border Services Agency (CBSA), Johnstone worked rotating shifts, as did her husband, who was also an employee of the CBSA. Commercial childcare centres did not provide the flexible hours demanded by shift rotation, and Johnstone requested a fixed shift to accommodate her childcare needs. Like CN, the CBSA had an accommodation policy, but it did not apply it to accommodation requests related to childcare. Instead, such requests were addressed under a different policy that required employees to pay a price for a transfer to a fixed shift: reversion to part-time status, with consequent loss of wages and benefits and poorer promotional prospects. Johnstone accepted part- time work but filed a human rights complaint alleging discrimination on the grounds of family status. Johnstone’s claim was arguably more radical than those raised in the CN trilogy since she sought not simply one-time accommodation but relief from a rotating shift schedule for a period of several years. Before the tribunal, the CBSA acknowledged that family status covered parent-child relationships but argued that it protected only “pure status” (that is, the fact of the relationship) and did not encompass care obligations accompanying that status.55 In the alternative, it urged a higher burden of proof in family status cases and argued that Johnstone had failed to make out a prima facie case. As CN saw it, her childcare problems were personal; they resulted not from the CBSA’s scheduling practices but, rather, from Johnstone’s own life choices.56 The CHRT was not persuaded. It found that the CBSA’s policy adversely “affected Ms. Johnstone’s employment opportunities including, but not limited to promotion, training, transfer, and benefits on the prohibited ground of family status.”57 Since the CBSA 53 2013 FC 117 at para 55 [Seeley FC]. 54 Johnstone v Canada Border Services, 2010 CHRT 20, [2010] CHRD No 20 [Johnstone CHRT]. 55 Ibid at para 215. 56 Ibid at paras 88, 268. 57 Ibid at para 242. 46 FAMILY STATUS DISCRIMINATION VOL. 14 had taken no steps to accommodate Ms. Johnstone’s request for full-time work, a finding of discrimination inevitably followed. In addition, the CHRT found the CBSA’s refusal to accommodate “reckless and willful” since the CBSA was the successor employer to the respondent in Brown and had clearly failed to implement Brown’s systemic order.58 The FCA dismissed both appeals, issuing its principal reasons in Johnstone. The court confirmed its formal adherence to the O’Malley approach, piously rejecting the Campbell River test on the ground that there should be no “hierarchies of human rights.”59 However, it then insisted that on a contextual interpretation the term “family status” itself limited the types of childcare obligations that would justify calling on the employer to accommodate. As the court saw it, [t]he childcare obligations that are contemplated under family status should be those that have immutable or constructively immutable characteristics, such as those that form an integral component of the legal relationship between a parent and a child. As a result, the childcare obligations at issue are those which a parent cannot neglect without engaging his or her legal liability.60 The FCA saw this limitation as necessary to avoid “trivializ[ing] human rights legislation by extending human rights protection to personal family choices, such as participation of children in dance classes, sports events like hockey tournaments, and similar voluntary activities.”61 The court stated its new test as follows: [I]n order to make out a prima facie case 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 meet those childcare obligations through reasonable alternative solutions, and that no such 58 For the history of this refusal, see ibid at paras 53-77. To reflect this conduct, the CHRT made an order of special damages. Ibid at paras 379-82. 59 Canada (Attorney General) v Johnstone, 2014 FCA 110 at para 81, [2015] 2 FCR 595 [Johnstone FCA]. The Federal Court of Appeal (FCA) also adjusted the remedial orders. 60 Ibid at para 70. 61 Ibid at para 69. VOL. 14 JOURNAL OF LAW & EQUALITY 47 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.62 The Court found that both Johnstone and Seeley met this test. While the FCA rejected the Campbell River test on the grounds that it created a double standard, its new test is remarkably similar.63 Campbell River required complainants to show a serious interference with a substantial parental (or other family) obligation to make out a prima facie case. Johnstone’s requirement that the family obligation be a legal obligation is arguably even more onerous. In addition, the FCA’s insistence that complainants make every reasonable effort to solve their own problems before seeking accommodation from their employers—a requirement that has become known as “self-accommodation”—raises the bar even higher.64 Despite this, the FCA saw its test as conforming to the prevailing human rights standard. And, in this, it may well be right. The test clearly bulks up the O’Malley requirements. But as Denise Réaume and other scholars have pointed out, this is a phenomenon we have seen more generally in Canadian courts and tribunals.65 The trend towards assimilating the human rights code concept of discrimination to that under section 15 of the Canadian Charter of Rights and Freedoms requires “something more” than mere adverse impact before the burden shifts to the respondent to justify a rule.66 Réaume is critical of the “something more” requirement, arguing that it distorts the fundamental “architecture” of human rights regulation: “[T]he sophisticated web of exemptions available, varying in 62 Ibid at para 93. 63 Federal tribunals have already made this observation. See Flatt v Treasury Board (Department of Industry), 2014 PSLREB 2, 121 CLAS 127 [Flatt PSLREB], aff’d in Flatt v Canada (Attorney General), 2015 FCA 250, 2016 CanLII 24872, leave to appeal to SCC refused [Flatt FCA]. 64 See Lyle Kanee’s critique of this requirement in this volume. 65 Denise Réaume, “Defending the Human Rights Codes from the Charter” (2012) 9 JL & Equality 67. See also Benjamin Oliphant, “Prima Facie Discrimination: Is Tranchemontagne Consistent with the Supreme Court of Canada’s Human Rights Code Jurisprudence?” (2012) 9 JL & Equality 33. This trend is more visible in some Canadian jurisdictions than in others. Notably, the Nova Scotia Court of Appeal specifically rejected a “something more” test in that province as a matter of statutory construction. See International Association of Firefighters, Local 268 v Adekayode, 2016 NSCA 6 at paras 70-8, 2015 CLLC 230-025 (NS HRC), aff’g on other grounds. 66 Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. 48 FAMILY STATUS DISCRIMINATION VOL. 14 stringency along several dimensions, is best understood as signaling the legislature’s intention that the important normative work of determining the scope of liability under the [codes] should be done at the point of considering whatever exemptions may be available to the respondent.”67 Despite such criticisms, tribunals that reject an explicit higher threshold for family status cases have nevertheless begun to rely on this Charter-driven trend to rationalize decisions that come out in very much the same place as Campbell River and Johnstone. An example is Misetich v Value Village Stores, a case involving eldercare in which the Human Rights Tribunal of Ontario (HRTO) rejected both the Johnstone and Campbell River tests because it saw them as creating a more onerous threshold test for family status discrimination than other grounds.68 The HRTO distanced itself from Johnstone’s requirement that family obligations must amount to legal obligations to be relevant to discrimination analysis; as the HRTO put it, “[t]here may be many obligations that caregivers have that may not emanate from their legal responsibilities, but are still essential to the parent/child relationship.”69 It likewise repudiated the concept of “self-accommodation.”70 In developing its own test, however, the HRTO accepted the need to prove more than mere negative impact linked to a prohibited ground to make out a prima facie case: “The negative impact must result in real disadvantage to the parent/child relationship and the responsibilities that flow from that relationship, and/or to the employee’s work.”71 While the HRTO emphasized that the impact assessment must be done contextually, it saw the nature of the impact and the question of whether the complainant had other supports available as relevant to whether there was prima facie discrimination. Although the HRTO insisted that considering other available supports is qualitatively different than “self-accommodation,” in practical terms, the test operates much like the Johnstone test to increase the burden on complainants seeking to establish a prima facie case.72 67 Réaume, supra note 65 at 69. 68 Misetich v Value Village Stores Inc, 2016 HRTO 1229, 2016 HRTO 1641 at paras 42- 8, request for consideration refused. 69 Ibid at para 46. The Human Rights Tribunal of Ontario (HRTO) expressed concern that a test that turned on legal obligations alone was inappropriate for eldercare cases, where legal responsibilities were not so likely to be at issue. Ibid at paras 46-7. 70 Ibid at para 48. 71 Ibid at para 54. 72 Ibid at para 56. VOL. 14 JOURNAL OF LAW & EQUALITY 49 IV. THE GENDERED IMPACT OF HIGH THRESHOLDS Family status jurisprudence is clearly converging on a high threshold test for prima facie discrimination. Regardless of how the threshold is articulated, however, employees with trivial complaints do not get through the front door. Employees who have not made bona fide efforts to find their own childcare are not likely to succeed, whether or not their failure to do so is labelled “self-accommodation.” Employees lose their cases if altering or bending the workplace rule at issue would pose a genuine hardship to the employer. So do higher thresholds really make a meaningful difference to case outcomes? Why do employers fight so hard for high threshold tests to stop these claims? Are the consequences of high thresholds more than merely procedural? The answer is clearly yes. Bulking up the content of the prima facie case increases the odds that employers will be shielded from having to justify their workplace practices.73 Employers argue against low prima facie thresholds on the ground that they will be forced to expend resources on defending against “trivial” complaints. But, in fact, it is the opposite of “triviality” they are really concerned about. What strikes fear into the heart of employers is the pervasiveness and seriousness of the problem of reconciling work and family care obligations within workplaces in which we have normalized working conditions that place extraordinary pressures on family life—or, to use the language of O’Malley, imposed adverse effects on the ground of family status. As one arbitrator frankly acknowledged, “[o]n a basic level, attendance at work interferes with family obligations.”74 However, instead of following this reasoning to its logical conclusion that such rules constitute prima facie discrimination on the basis of family status, adjudicators insist that it is simply “untenable” to “accept[] the proposition that any employer action, which has a negative impact on a family or parental obligation, is prima facie discriminatory.”75 Arbitrators express concern that “[t]o find discrimination in every … circumstance of adverse effect would freeze the employer’s ability to act to meet its economic needs as virtually every action could have some negative effect on the parental duties of one employee or another.”76 These 73 See Réaume, supra note 65; Oliphant, supra note 65. See also Dianne Pothier, “Tackling Disability Discrimination at Work: Toward a Systemic Approach” (2010) 4:1 McGill JL & Health 17. 74 Siemens Milltronics Process Instruments Inc v Employees Association of Milltronics, 225 LAC (4th) 354 at para 64, 112 CLAS 325 (Ontario Arbitration) Arbitrator John Stout. 75 Ibid. 76 International Brotherhood of Electrical Workers, Local 636 v Power Stream Inc. (Bender Grievance), [2009] OLAA No 447 at para 56, 186 LAC (4th) 180 (Ontario 50 FAMILY STATUS DISCRIMINATION VOL. 14 comments echo the Campbell River prediction that “disruption and great mischief” in the workplace will follow if employers are forced to respond to the exigencies of family life.77 This preoccupation with potential “floodgates” problems is warranted if the goal is to shore up the walls of the male breadwinner workplace. From that perspective, interpretive strategies that impede complainants make sense. But, as we have seen, the efforts of adjudicators to place limits on the concept of family status turn on formalistic distinctions and bright- line tests—“something mores”—which bear little or no relationship to the equality-promoting goals of human rights legislation. And they ignore almost completely the gendered core of the discrimination issue inherent in the work-family conflict. In early cases such as Brown and Hoyt, the CHRT recognized the nexus between gender and family status discrimination because direct sex discrimination had tainted employer decisions to refuse to accommodate the complainants’ childcare responsibilities. By the time we reach the railway trilogy—Seeley, Richards v Canadian National Railway, and Whyte v Canadian National Railway—the gendered nature of the clash between the complainants’ needs and formal work requirements has become almost entirely invisible in the reasoning of the adjudicators. It is obvious that the employer’s vigorous resistance to applying its accommodation policy to childcare issues was rooted in its traditional attitudes to women in the workplace. However, the decisions make no reference to CN’s long history of discriminatory employment practices; indeed, they make scant reference even to Hoyt, in which CN had previously been found liable for failure to accommodate childcare needs.78 Likewise in Johnstone, the adjudicators acknowledged the CBSA’s history as a recidivist employer by ordering special damages, but they do not comment on the gendered roots of that history, which are very evident in Brown. Adjudicators would get more quickly to the gendered heart of the family care issue if they took gender into account in approaching the real- life problems embedded in family status claims. A rare example of this approach is Communications Energy and Paperworkers Union, Local 707 v SMS Equipment, in which Arbitrator Lyle Kanee upheld the grievance Arbitration) Arbitrator Norm Jesin [Power Stream]. See also Alberta (Solicitor General) v AUPE (2010), 192 LAC (4th) 97, 101 CLAS 8 (Alberta Arbitration) Arbitration Chair Allen Ponak. 77 Campbell River CA, supra note 26 at para 38. 78 See CN v Canada (Canadian Human Rights Commission), [1987] 1 SCR 1114, 40 DLR (4th) 193, in which the Supreme Court of Canada upheld a path-breaking CHRT decision holding CN liable for systemic sex discrimination in hiring and promotion practices and ordering it to hire a woman for at least one in every four “non-traditional” vacancies until female representation reached the 13 percent national average. VOL. 14 JOURNAL OF LAW & EQUALITY 51 of a mother who sought a day shift in order to manage the social and economic costs of work and family life.79 As described by the arbitrator, the grievor was “the single mother of two children under the age of six, with no childcare support from the children’s fathers or any other family members. She is working in a non-traditional job (female welder) on a non-traditional shift in a non-traditional pattern (rotating).”80 Kanee’s decision provides a detailed account of the real-life challenges faced by the grievor—her attempts to balance the costs of daytime care for her young children with her own need for sleep, her anxiety about leaving them in third-party care for up to twenty hours a day for seven straight days, her desire to spend at least some personal time with them, and the unmanageable cost of paying for childcare both for days while she slept and nights while she worked. Assisted by expert evidence, the arbitrator placed the grievor’s personal situation in the broader context of the disadvantaged position of women in the workforce and the disproportionate impact of work-family conflict on single mothers. To the employer’s argument that the grievor’s burdens were the result of her personal choices, and that she could have done more to “self-accommodate,” the arbitrator expressed the view that “self-accommodation” efforts are relevant only at the stage of determining reasonable accommodation.81 He found a prima facie case of family status discrimination, and, in the absence of evidence that the employer’s rotating shift requirement was a bona fide occupational qualification, he allowed the grievance. In sharp contrast is International Brotherhood of Electrical Workers, Local 636 v Power Stream (Bender Grievance).82 This arbitration decision is frequently, but wrongly, cited as a model of contextual analysis.83 The grievances involved were filed by four male linemen challenging a change in shift-scheduling policy that required four ten-hour shifts per week instead of allowing workers to opt for five eight-hour shifts. For the grievors, a shorter working day had allowed for better integration of work and family obligations. The employer resisted their requests for accommodation, citing various inefficiencies and inconveniences 79 Communications, Energy, and Paperworkers Union, Local 707 v SMS Equipment Inc (2013), 238 LAC (4th) 371, 116 CLAS 285 (Alberta Arbitration), aff’d in 2015 ABQB 162 Arbitrator Lyle Kanee [SMS]. 80 Ibid at para 62. 81 Ibid at para 69. 82 Power Stream, supra note 76. 83 See e.g. Seeley FC, supra note 53 at para 81. See also Johnstone FCA, supra note 59 at para 72; Flatt PSLREB, supra note 63 at para 173. 52 FAMILY STATUS DISCRIMINATION VOL. 14 associated with offering employees a choice of shift schedules but acknowledging that it had no “undue hardship” defence.84 One grievor succeeded in establishing a prima facie case of family status discrimination. He owed his success to the fact that his “carefully crafted” childcare arrangements were the subject of a joint-custody agreement with his wife. Under his prior eight-hour schedule, he could take the children to and from daycare when he had custody; under his new ten-hour schedule, he could not. The arbitrator was persuaded that the prior arrangement was “in the best interest of not only [the separated spouses], but their children as well.”85 He rejected the employer’s submissions that the grievor could have self-accommodated.86 So far, so good. The other grievors, however, got less sympathetic treatment, although the evidence suggests that their childcare arrangements were just as “carefully crafted.” Two were married; in both cases, their wives stepped in to take over the childcare duties their husbands were no longer able to perform because of the schedule change—one by leaving her job and the other by taking on additional domestic duties on top of a full-time job. The arbitrator dismissed these grievances, noting that the grievors had “been able to fulfill their parental obligations by rearranging duties with their spouses. That is what families do every day.”87 The gender implications of such solutions are self-evident since the costs of this “self- accommodation,” in lost work opportunities and increased domestic burdens, would therefore be imposed on the women in the family. Of course, the arbitrator is correct to observe that solutions like this are what “families do every day”; they may be the best available in a gender- unequal world in which women’s earning power is less than men’s. But such solutions exacerbate gender inequality, while letting employers completely off the hook. We see a similar absence of gender-sensitive analysis in the treatment accorded to the fourth grievor, the father of sons aged thirteen and sixteen. He testified that the longer working day made it more difficult and more exhausting to manage his household responsibilities as a single parent, such as “grocery shopping, making dinner and keeping the house clean.”88 In addition, the change prevented him from getting home on time to coach 84 Power Stream, supra note 76 at para 8. 85 Ibid at para 67. 86 Ibid at para 69: the grievor had “arranged his life to accommodate the previous schedule and he should not have been required to accommodate the new schedule in the manner suggested to deal with his substantial parental obligations without an inquiry as to whether the Employer could accommodate him.” 87 Ibid at para 64. 88 Ibid at para 23. VOL. 14 JOURNAL OF LAW & EQUALITY 53 his sons’ sporting events.89 The arbitrator dismissed these realities as a “fact of life” for working parents and, therefore, irrelevant to a claim of discrimination.90 If these “facts of life” had been assessed through a gender lens, the grievor’s dilemma would have been understood within the broader context of the vulnerability of single parents, which is an artefact of gender inequality regardless of the gender of any individual single parent. Through a gender lens, the arbitrator would have seen that changes in work schedules and increases in the length of the working day have a differential adverse impact on single parents, which directly affects their ability to fulfill their family responsibilities. A gender lens might even reveal that parental participation in sports and other supplementary activities may be more fundamental to the parenting of children who live in a single-parent family. From a gender perspective, it is not unreasonable to call upon the employer for evidence that the new scheduling practice met the Meiorin test of business justification and that the grievor’s needs could not be accommodated short of undue hardship. An even starker example of the erasure of gender is the most recent Federal Court venture into the family status arena, Flatt v Canada (Attorney General).91 The case involved a request by Laura Flatt, a federal public servant, to “telework” (that is, work from home) as an accommodation to facilitate breast-feeding. When Flatt’s request was refused, she filed a grievance alleging discrimination on grounds of sex and family status. In apparent ignorance of decades of feminist scholarship on the concept of intersectionality, the Public Service Labour Relations and Employment Board (PSLREB) placed “sex” and “family status” in watertight compartments. As the PSLREB saw it, breast-feeding is only a mechanism for “establishing a solid nourishing and nurturing bond between an infant and his or her mother”; these are components of the parent-child relationship, an issue of family status rather than sex.92 Furthermore, the PSLREB expressed the view that breast-feeding is one mechanism among many and women are not obligated to choose it. Requiring accommodation for breast-feeding would “denigrate” [sic] the nurturance choices of women who did not opt to breast-feed or who weaned their children early in order to return to work.93 The FCA likewise saw breast-feeding as a choice by Flatt that the employer had no obligation 89 Ibid at para 20. 90 Ibid at para 65. 91 Flatt FCA, supra note 63. 92 Flatt PSLREB, supra note 63 at paras 156-7. 93 Ibid at para 154. 54 FAMILY STATUS DISCRIMINATION VOL. 14 to support.94 As the court saw it, a choice to breast-feed would trigger a duty to accommodate only if there were some special medical reasons for that choice, in which case the onus would fall on the mother to establish such a reason as part of her prima facie case.95 The PSLREB made clear its strong preference for a high prima facie threshold in family status cases. It was influenced by “floodgate” concerns similar to those we have seen animating the arbitration cases; if Flatt’s choice to breast-feed was indulged, other choices would have to be indulged as well. The consequence would be managerial chaos: “Given the almost infinite variety of the modern family, the result could be the Balkanization of the workplace as each employee established his or her own personal accommodation tailored to his or her own family situation.”96 But the PSLREB was equally influenced—as was the reviewing court—by a perception that the complainant sought to have her cake and eat it too: to give her child the benefits of breast-feeding and, at the same time, maintain a full-time job. The court did not disapprove of Flatt’s choice to breast-feed; on the contrary, the court went out of its way to express support. 97 However, it was not prepared to accord equal respect to the grievor’s choice to seek conditions in which she could combine breast-feeding with a full-time job. As the court saw it, “[t]his case is not about that choice [to breast-feed] 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 clear implication is that breast-feeding is a choice best made by “stay-at-home” mothers: “In the case of breastfeeding, the onus is on the working-outside-the home mothers to make a prima facie case of discrimination.”98 Much of the case law assumes a clear distinction between obligations and choices. Impediments to fulfilling obligations may attract relief under human rights law, but the indulgence of mere choices will not. In fact, the distinction is frequently far from clear. Virtually every decision about fulfilling the core obligations that accompany the parent-child 94 Troublingly, both the Public Service Labour Relations and Employment Board (PSLREB) and the FCA took the view urged on them by counsel for the employer and Flatt that the Johnstone test would apply to these facts regardless of whether the complaint was treated as sex or family status discrimination. See Flatt FCA, supra note 63 at paras 27, 32. If this suggests a common view that a high threshold is appropriate in cases involving family care regardless of how they are framed, there is no authority for such a proposition. 95 Ibid at para 33. 96 Flatt PSLREB, supra note 63 at para 172. 97 Flatt FCA, supra note 63 at para 38. 98 Ibid. VOL. 14 JOURNAL OF LAW & EQUALITY 55 relationship—providing healthy nutrition, safe shelter, responsible supervision, good education—involve choices, at the very least about means. What is really at issue here is the extent to which women will be allowed the autonomy to make their own choices about how to fulfill their care obligations and still maintain good jobs. Diana Majury captures that double-edged quality of women’s choices within the social and economic constraints of an unequal society: Choice limited by the context of inequality; coercion labelled as choice; choice restricted by access to money, resources, and education; qualified choice as part of a struggle for emancipation—these are women’s choices. There is no unqualified choice and the extent to which such choice is assumed is the extent to which equality is similarly assumed and inequality is therefore rendered invisible and unchallengeable.99 And both edges of the “choice” sword are made sharper for working women by the power imbalance inherent in the employment relationship. In the context of current family status jurisprudence, choice is doubly penalized. Women who make choices that conflict with the preferences of their employers are denied accommodation because they have failed to exhaust care options that mesh more readily with existing work rules. Within the constraints imposed by gender inequality, however, such options frequently reinforce traditional gender roles within families. They leave women “self-accommodated” in substandard jobs for which they will pay in current salary and benefits, in future income and promotional opportunities, and, lifelong, in the form of retirement benefits linked to labour force participation. The emphasis on choice is really an argument about causation. If employer choices about work organization and work rules are regarded as immutable, then clashes between work and family are logically seen as caused not by the rules themselves but, rather, by employee lifestyle choices—to be a single parent, to have children (and how many), to use professional daycare instead of ad hoc arrangements with family, friends, and neighbours, to refuse the nanny option, to live in a small town rather than a big city. But if workplace structures are understood as contingent— 99 Diana Majury, “Women are Themselves to Blame: Choice as a Justification for Unequal Treatment” in Fay Faraday, Margaret Denike & M Kate Stephenson, Making Equality Rights Real: Securing Substantive Equality under the Charter (Toronto: Irwin Law, 2006) 209 at 218. 56 FAMILY STATUS DISCRIMINATION VOL. 14 as choices made by employers with the unencumbered worker in mind— we would see the issue of causation quite differently. We would be much more likely to interrogate family-hostile working conditions like those that prevail in the railways and the CBSA. We would certainly be quicker to question if it is really necessary to a thriving economy to organize work around the gendered and obsolete assumption that workers come without family responsibilities. We do ask such questions when we apply the Meiorin test, requiring employers to justify their employment practices against the standard of reasonable business necessity and to demonstrate that even where that standard is met, they have genuinely explored whether it is possible to be flexible for workers disadvantaged by those practices because of family care responsibilities. However, employers are not put to the Meiorin test unless the claimant can make out a prima facie case. Where prima facie thresholds are high, employers rarely find their arrangements questioned. If thresholds were lower—as under O’Malley—employers might well find themselves litigating in a climate in which the only real issue was the Meiorin test and the duty to accommodate. Outcomes would almost certainly be very different. V. CONCLUSION To date, the family status case law has largely accepted a conception of a “normal” workplace that does not seriously question the employer’s right to establish workplace rules and structures without regard to the exigencies of family life. Workers whose needs clash with these rules and structures are positioned as deviant; the message is that “normal” workers fit into the “normal” workplace. The reality is different. As many adjudicators have frankly conceded, the so-called “normal” workplace” is often deeply hostile to family life. Ironically, it is this reality that drives the concern that the floodgates will open if employers are put to the proof that workplace rules and practices that interfere with the routine demands of family life are truly bona fide occupational requirements—in other words, that they are truly necessary to the running of their businesses. In addition, most current jurisprudence has ignored the deep roots of the family care issue in an ideology of women’s economic, social, and cultural subordination. It turns on the casual acceptance of a legal requirement that before employers can be asked to change, or even to bend their rules, employees themselves must do their best to “self- accommodate,” despite the fact that the available alternatives impose gendered costs and deepen women’s inequality. The male breadwinner/female homeworker world is now long gone. But until employers are put to the proof that it is truly a business necessity to require VOL. 14 JOURNAL OF LAW & EQUALITY 57 working parents to shape their lives around work rules generated in that world, women must continue to compromise income, promotional opportunities, and benefits to meet their family care obligations. They must continue to make “choices” that impose a high price not just on themselves but also on the (mostly female) family members who step in to deal with childcare problems and emergencies and on women of the global south who constitute the “nanny option” for middle-class Canadian women.100 These are serious consequences—for women, for families and family relationships, and for society as a whole. Given the radical challenge that family status claims pose to the workplace status quo, the practical results reflected in family status cases have been remarkable. They have gone at least some distance towards forcing employers to acknowledge social reproduction as a cost of doing business and requiring them to internalize some of that cost.101 The successful cases, however, have focused almost entirely on individual accommodation rather than on systemic change. They involve less typical situations: single parents, women in non-traditional jobs, children with special needs, and workers on unpredictable rotating shifts, rather than the routine jobs and routine crises of family life for working parents.102 The frequently modest and temporary accommodations granted by adjudicators do not contest the fundamental right of employers to call the shots without regard to employee needs and aspirations. And, as we know from Seeley and Johnstone, and Brown and Hoyt before them, individual successes do not readily translate into systemic change in the face of employer determination to keep the workplace free of “encumbered” workers. Does this mean that we should declare the “family status” experiment a failure? Have we reached the limits of the gender equality gains that can be achieved by continuing to litigate family status discrimination claims? Law and litigation have always been limited tools for social change, and reactive litigation is unlikely to be the most effective way to get at the deeply embedded problems posed by the twenty-first-century family care problem. Proactive measures have a role to play here; legislation and other public policy measures are more likely to take us directly to the heart of 100 See Shirley Lin, “‘And Ain’t I a Woman?’: Feminism, Immigrant Caregivers, and New Frontiers for Equality” (2016) 39 Harv JL & Gender 67. 101 See Lisa Phillips, “There’s Only One Worker: Toward the Legal Integration of Paid Employment and Unpaid Caregiving” in Law Commission of Canada, ed, New Perspectives on the Public-Private Divide (Vancouver: UBC Press, 2003) 3. 102 Even in the SMS Communications case, the arbitrator is careful to emphasize that the circumstances in which the grievor found herself “are not the circumstances of ‘ordinary’ working parents.” SMS, supra note 79 at para 62. 58 FAMILY STATUS DISCRIMINATION VOL. 14 the problem. It is beyond the scope of this article to canvass all available options. One policy solution worth considering, however, is imposing a free-standing pro-active duty on employers to review and revise family- hostile work practices, a duty that starts from the premise that family care is a “cost of production,” for which employers as well as employees have responsibility, and does not depend on proof that the individual work rules have inflicted damage on individual women. But, meanwhile, there is also room for litigation. The Canadian experiment with family status discrimination is still a work in progress, reflecting not only the limitations of litigation but also its possibilities. We should not discount the benefits of individual accommodation, even if the realities of the litigation model mean that those benefits are available almost exclusively to women fortunate enough to hold relatively good jobs, typically in unionized workplaces, with access to the resources for effective litigation. And there remain litigation possibilities that have not been fully exploited. More could be done with intersectional analysis. If the comfortably gender-neutral ring of the term “family status” has masked the gendered nature of the family care issue, offering evidence and framing arguments that force employers and adjudicators to confront the impact of their decisions on women might well improve outcomes. In addition, more could be done to challenge employer practices of direct/intentional discrimination. Entrenched and gendered attitudes to the relationship between work and family clearly lay at the heart of the earlier cases in which employers treated requests for family care accommodation with scarcely veiled—or even open—contempt. Those entrenched attitudes have not disappeared, and there continues to be evidence of employer accommodation policies that are tainted by prejudice and stereotyping. Employer refusals to acknowledge family care issues as human rights issues, such as we saw in both the Johnstone and railway cases, should be treated as direct discrimination—the low-hanging fruit for equality litigation—which has much more difficulty passing the Meiorin test. Even more promising outcomes can be expected if resources are assembled to launch systemic complaints. The high prima facie thresholds that have been such an obstacle to reaching the core issues are clearly designed only with individual claims in mind. Systemic cases would offer opportunities to devise new tests, which could not logically turn on concepts like self-accommodation. Furthermore, within a systemic model, we could seek much more effective remedies. For individual claims, accommodation in the form of “bending” or “waiving” the rules almost inevitably presents itself as the preferred solution when work rules impede a worker’s ability to manage both work and family obligations. But “accommodation talk” risks reinforcing the false perception that “normal” VOL. 14 JOURNAL OF LAW & EQUALITY 59 workers do not experience work/family conflict.103 The better approach— and the one most consistent with Meiorin—is to think of individual accommodation as the solution only where systemic measures fail. To be compliant with Meiorin, work rules must first pass a test of business necessity. Justice Beverley McLachlin could not have made that any clearer when she stated that to pass that test flexibility must be built right into the rules, unless flexibility would itself produce undue hardship.104 If adjudicators took this injunction seriously, many routine workplace rules would not survive. High prima facie thresholds in family status cases operate as a bulwark against the erosion of employer power to keep family care issues out of the workplace. They stack the deck in favour of employers by permitting them to evade the Meiorin test, avoiding serious challenge on the key questions of whether family-hostile and inflexible work rules are really necessary. If they are demonstrably necessary, they will remain in place under the Meiorin test. If accommodation is really a hardship, it will not be ordered. But, as the law is currently being applied, we reach those questions only in exceptional cases. In a country constitutionally committed to the principle of gender equality, this is not good enough. 103 Shelagh Day & Gwen Brodsky, “The Duty to Accommodate: Who Will Benefit?” (1996) 75 Can Bar Rev 433 at 462, quoted with approval by McLachlin J in Meiorin, supra note 23 at para 41. See also Gwen Brodsky, Shelagh Day & Yvonne Peters, Accommodation in the 21st Century (March 2012), online: Canadian Human Rights Commission Family Status Discrimination and the Obligation to Self-Accommodate Lyle Kanee, QC, and Adam Cembrowski ABSTRACT The authors examine the evolving caselaw on family status discrimination under human rights law, through the lens of a 2013 arbitration decision: Communications, Energy and Paperworkers Union, Local 707 v. SMS Equipment Inc. (Cahill-Saunders Grievance). As arbitration and court decisions have developed an analytical framework for considering requests for accommodation on the basis of family status, they have placed continuing emphasis on the obligation of employees to “self- accommodate” - to fully explore alternatives that might resolve childcare and other parenting challenges - before seeking any accommodation of work schedules or other employer-controlled solutions. The authors examine the evolution of this self-accommodation obligation, and consider whether it can be reconciled with the analytical framework established for assessing whether there is a prima facie case of discrimination for prohibited grounds of discrimination other than family status. Privacy and dignity interests are engaged by requiring parents to justify their parenting, childcare and financial choices in order to address self- accommodation. This aspect of family status cases is inconsistent with the requirement of a broad purposive approach to human rights law. Instead, questions about what reasonable alternatives are available to parents can be considered within the well-established case law on the duty to accommodate to the point of undue hardship. R.C.S., a single mother of two young children who worked as an apprentice welder in Fort McMurray, Alberta, was working a schedule of seven days on, seven days off, alternating night and day shifts each rotation. R.C.S. had arranged childcare for her children while she was at work, leaving each child at a different care home. However, when she worked nights, she picked her Lyle Kanee, Q.C., is a labour arbitrator and mediator. He has taught labour law and labour arbitration at the University of Alberta and Osgoode Hall law schools. He has also has served as a Vice-Chair of the Alberta and Ontario labour boards. Adam Cembrowski holds a JD and a BSc from the University of Alberta and an MSc from the University of Toronto. After earning his JD, he clerked at the Court of Queen's Bench in Alberta and is currently completing his articles with a union-side labour law firm in Edmonton, Alberta. 62 THE OBLIGATION TO SELF-ACCOMMODATE VOL. 14 children up from their care homes on the way from work and, instead of sleeping during the day, looked after them. This schedule was interfering with her ability to perform her work satisfactorily. She was already living on payday loans to cover her rent, childcare costs, and other debt payments so incurring additional childcare costs did not seem like a viable option. She was also reluctant to leave her children in the care of a stranger for periods of up to twenty hours for seven days in a row. She asked her employer if she could work straight day shifts. Her union found another apprentice welder who was willing to work straight nights. From a purely practical, human resources perspective, this might seem like an easy case—a win-win situation for all involved. R.C.S. would work straight day shifts, be well rested, and minimize her childcare costs, her co-worker would get to work his preferred night shifts, and the employer would have two happy, productive apprentice welders. Other employees, including some with disabilities, were permitted to work straight day shifts. Nonetheless, without explanation, her employer refused to accommodate her request. R.C.S. filed a grievance, which her union eventually advanced to arbitration in 2013. 1 The presentation of the case and arguments by counsel for both parties were excellent. Counsel for the employer pointed out the impropriety of simply jumping to the end of the story and usurping the role of management by imposing what seemed like a reasonable solution. The union had to first establish a prima facie case of discrimination on the basis of family status and, at a minimum,2 prove that R.C.S. had taken sufficient steps on her own to reconcile the conflict between her work and family obligations before turning to her employer for accommodation.3 According to the employer, she had failed to do so. Unlike some of the other reported cases, this was not a case of being unable to find childcare—it was simply about the cost of it, which the employer argued was “an inevitable burden that must be borne by working parents.”4 The employer pointed out that R.C.S. had not taken any legal steps to pursue either of the fathers of her children for child support. She had not asked the one father who had been involved with his child to request his employer to alter his schedule so that he could provide some childcare. 1 One of us, Lyle Kanee, was appointed arbitrator in the case. Some of the analysis that follows is based on the experience of hearing and working through the arguments presented. 2 The employer’s primary argument was based upon Health Sciences Association of British Columbia v Campbell River and North Island Transition Society, 2004 BCCA 260, 240 DLR (4th) 279 [Campbell River]. Hence, the employer argued that the union needed to prove an employer-implemented change in the terms and conditions of employment resulting in serious interference with a substantial parental obligation of the grievor. 3 For the purposes of this article, this requirement will be referred to as “self-accommodation.” 4 Written Submission of the employer, SMS Equipment, on file with authors. VOL. 14 JOURNAL OF LAW & EQUALITY 63 Nor had R.C.S. pursued all possible government subsidies. She had recently sold her jeep and bought a newer truck that used more gas. She insisted on hiring adult babysitters instead of less expensive teenagers. The employer submitted that, while she was entitled to make these choices, she could not then expect her employer to change her schedule—a schedule that was in place when she applied for the job. The union argued that a requirement that all employees work a rotating day-and-overnight-shift schedule—an otherwise neutral employer rule— had a discriminatory impact on single parents like R.C.S. It called an expert witness who testified that the burdens on single mothers of preschool children are particularly onerous and are exacerbated when they work evenings or rotating shifts. In part, due to the work schedules of the industry, women are significantly under-represented in the trades, representing just 4 percent of all construction workers in Canada. The union argued there was no justification for adding additional requirements, such as the obligation to self-accommodate, to the test for establishing prima facie discrimination on the ground of family status. In any event, R.C.S. had established that there were no reasonable alternatives available to her. The case was a difficult one. Was the union’s success dependent upon a finding that R.C.S. could not reasonably afford additional childcare during the day when she worked nights? If so, was one required to scrutinize all of her financial decisions? Did one need to explore the obligations and capabilities of the children’s fathers? Of what relevance was the expert evidence on the additional stress parents experience when they work rotating shifts and night shifts, or evidence on the low number of women working in the building trades? Did it matter that R.C.S. knew about the rotating shift schedule and the challenges it brought when she applied for the job? Must the prima facie test for discrimination on other protected grounds be modified when the claim is based on family status? Ultimately, the award found that the union had established a prima facie case of discrimination. Although sceptical about the justification for imposing an obligation to self-accommodate, the award avoided fully resolving the issue and, instead, found that R.C.S. had taken reasonable steps to reconcile her family and work obligations before seeking accommodation from her employer.5 At the time the award was issued, the only appellate decision addressing the test to establish prima facie discrimination on the ground of family status was the BC Court of Appeal’s decision in Health 5 Communications, Energy, and Paperworkers Union, Local 707 v SMS Equipment Inc (Cahill-Saunders Grievance) (2013), 238 LAC (4th) 371, [2013] AWLD 5319 (AB) [SMS Equipment], aff’d 2015 ABQB 162, 254 LAC (4th) 34 [SMS Equipment QB]. 64 THE OBLIGATION TO SELF-ACCOMMODATE VOL. 14 Sciences Association of British Columbia v Campbell River and North Island Transition Society.6 Although Campbell River did not specifically discuss an obligation to self-accommodate, arbitrators, human rights adjudicators, and lower courts increasingly applied such a requirement after the decision of the BC Court of Appeal. While there was some divergence in the jurisprudence, it would be fair to say that the majority required claimants to take all reasonable steps to self-accommodate. Subsequent to the award in Communications, Energy, and Paperworkers Union, Local 707 v SMS Equipment, the Federal Court of Appeal decided Johnstone v Canada (Border Services). 7 This case involved a full-time employee of the Canadian Border Services Agency (CBSA) who worked rotating, unpredictable shifts and asked her employer to accommodate her by providing her with static day shifts after she returned from maternity leave. After a decade of protracted litigation, the Federal Court of Appeal upheld her complaint. The CBSA had an unwritten policy that required employees with childcare obligations to reduce their hours to part-time status and to forego a number of full-time benefits if they sought to work fixed schedules. The court found that this policy discriminated against Ms. Johnstone. In making this finding, the court identified four factors that establish a prima facie case of workplace discrimination based on family status, including that the complainant has “made reasonable efforts to meet childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible.”8 The court elaborated further on this condition: A complainant will, therefore, be called upon to show that neither they nor their spouse can meet their enforceable childcare obligations while continuing to work, and that an available childcare service or an alternative arrangement is not reasonably accessible to them so as to meet their work needs. In essence, the complainant must demonstrate that he or she is facing a bona fide childcare problem. This is 6 Campbell River, supra note 2. For further discussion of family status discrimination in this context, see Elizabeth Shilton, “Family Status Discrimination: ‘Disruption and Great Mischief’ or Bridge over the Work-Family Divide?” in this issue; Sheila Osborne- Brown, “Discrimination and Family Status: the Test, the Continuing Debate, and the Accommodation Conversation” in this issue. 7 2014 FCA 110, 372 DLR (4th) 730 [Johnstone CA]. 8 Ibid at para 93. The other three conditions are: (1) that a child is under his or her care and supervision; (2) that the childcare obligation at issue engages the individual’s legal responsibility for that child, as opposed to a personal choice; and (3) that the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation. VOL. 14 JOURNAL OF LAW & EQUALITY 65 highly fact specific, and each case will be reviewed on an individual basis in regard to all of the circumstances.9 Most of the decisions issued since Johnstone have adopted the obligation to self-accommodate. Some have refined the test, and a few have rejected it outright.10 The majority of cases have favoured requiring claimants to establish that they have been unable to reconcile their childcare obligations on their own and within their own family before seeking accommodation from their employer. This article re-examines the issue of self- accommodation, exploring the justifications offered by the authorities for including the requirement in the prima facie test and the concerns and criticisms that have been raised in response. We examine the challenges that adjudicators face in applying a prima facie test that requires claimants to self-accommodate and consider what, if any, practical impacts this requirement has on the outcome of decisions. The current approach is problematic as it is inconsistent with a broad and purposive approach to interpreting human rights obligations; it creates a hierarchy of grounds, with family status claims being treated more onerously than others; and it distorts the analysis of adverse effects. Moreover, it is unnecessary. We finish by arguing that the concerns that underlie the imposition of a self- accommodation requirement can be addressed through the well- established approach to determining whether an employer has reasonably accommodated an employee to the point of undue hardship. I. THE DEVELOPMENT OF THE OBLIGATION TO SELF-ACCOMMODATE The self-accommodation requirement confirmed in Johnstone gradually took shape over a line of cases that began with Campbell River. Before turning to these cases, we outline briefly the foundation for discrimination analysis, including the requirement that a complainant must first establish a case of prima facie discrimination before a claim for reasonable accommodation will be considered. A complainant initially bears the onus of establishing a prima facie case of discrimination. In Moore v British Columbia (Education), the Supreme Court of Canada set out a three-step test: “[C]omplainants are required to show that they have a characteristic protected from 9 Ibid at para 96. 10 See e.g. Clark v Bow Valley College, 2014 AHRC 4 [Clark]; Wing v Niagara Falls Hydro Holding Corporation, 2014 HRTO 1472, in which Johnstone CA, supra note 7, has been applied, and SMS Equipment QB, supra note 5, and Misetich v Value Village Stores Inc, 2016 HRTO 1229 [Misetich], in which it has been rejected. 66 THE OBLIGATION TO SELF-ACCOMMODATE VOL. 14 discrimination under the Code; that they experienced an adverse impact with respect to the service; and that the protected characteristic was a factor in the adverse impact.”11 It has often been noted that the requirement to establish a prima facie case is a low threshold as it serves only to shift the evidential burden to a respondent to provide an explanation.12 Indeed, in disability cases, there is usually little dispute that the discrimination relates to the ground, as many workplace standards can pose obstacles for disabled employees, and the prima facie case stage is therefore often muted or even assumed. Once a prima facie case of discrimination has been established, the burden of proof shifts to the respondent to establish a statutory defence, if one is available. In most employment cases, this means establishing that the term or condition of employment that has discriminatory effect is a bona fide occupational requirement (BFOR).13 Many work standards, such as schedules, can easily meet the first two elements of the BFOR test set out in the seminal case of British Columbia (Public Service Employee Relations Commission) v British Columbia Government and Service Employees' Union (Meiorin): (1) that the standard was adopted for a purpose rationally connected to the performance of the job and (2) that it was adopted in an honest and good faith belief that it was necessary to the fulfillment of that purposes.14 However, the third element of the three-step test set out in Meiroin requires that the employer establish that the standard is reasonably necessary to the accomplishment of that legitimate work- related purpose by demonstrating that it is impossible to accommodate the employee without imposing undue hardship upon the employer.15 Many workplace cases focus on this critical question and, in particular, on whether a particular accommodation causes undue hardship. The issue before the BC Court of Appeal in Campbell River was: “What then needs to be established to prove prima facie discrimination on family status?”16 The court did not specifically consider the grievor’s self- accommodation efforts; however, a number of subsequent decisions rely on Campbell River to justify imposing an obligation to self-accommodate. These decisions focus on the court’s comment that “in the vast majority of situations in which there is a conflict between a work requirement and a 11 Moore v British Columbia (Education), 2012 SCC 61, [2012] 3 SCR 360 at para 33 [Moore]. 12 Stewart v Elk Valley, 2017 SCC 30 at para 106, [2017] 1 SCR 591 [Stewart]. 13 Ontario (Human Rights Commission) v Etobicoke (Borough), [1982] 1 SCR 202, 132 DLR (3d) 14. 14 British Columbia (Public Service Employee Relations Commission) v British Columbia Government and Service Employees’ Union, [1999] 3 SCR 3 at para 54, 176 DLR (4th) 1 [Meiorin]. 15 Ibid. 16 Campbell River, supra note 2 at para 36. VOL. 14 JOURNAL OF LAW & EQUALITY 67 family obligation it would be difficult to make out a prima facie case.”17 Some adjudicators took this as a justification to inquire into whether the circumstances facing the claimant were extraordinary or simply comparable to those normally experienced by working parents. Since it is normal for working parents to experience conflicts between their work responsibilities and family obligations, and to solve those conflicts by procuring childcare, the implicit expectation was that all parents would do this. Parents claiming family status discrimination on the basis that work obligations prevented them from providing necessary childcare were therefore required to demonstrate what efforts they had made to secure childcare. Efforts judged to be lacking could halt the analysis before a prima facie case was made out. An early example is the 2006 decision of Canada Post Corporation v Canadian Union of Postal Workers (Sommerville) in which the arbitrator relied on the “vast majority” comment in Campbell River to impose an expectation on employees to arrange their own childcare and to turn to their employer only when their difficulties in arranging those obligations were extraordinary.18 Despite the difficulties many people experience with these obligations, the arbitrator held that the first issue to be determined was “whether or not the Grievor’s difficulties with daycare arrangements lay outside the experience of the vast majority of people.”19 Over time, the investigation into childcare arrangements has shifted into questioning grievors’ self-accommodation efforts. This shift is apparent in Power Stream v International Brotherhood of Electrical Workers, Local 636, one of the first decisions to articulate a requirement of self-accommodation.20 Four workers brought a grievance regarding a change to their work hours from five eight-hour shifts per week to four ten-hour shifts. Each grievor claimed that the schedule interfered with his ability to meet his family obligations. The arbitrator, in determining whether a prima facie case of discrimination was made out, set out a list of five questions. One of these questions focused on what efforts the grievors made at self-accommodation and whether the grievors “rejected options … that they should reasonably be expected to have [taken].”21 The arbitrator left open what could be considered reasonable. 17 Ibid at para 39. 18 Canada Post Corporation v Canadian Union of Postal Workers (Sommerville Grievance) (2006), 156 LAC (4th) 109, 87 CLAS 248 [Sommerville]. 19 Ibid at para 94. 20 Power Stream Inc v International Brotherhood of Electrical Workers, Local 636 (Bender Grievance) (2009), 186 LAC (4th) 180, 99 CLAS 93 (OLRB) [Power Stream]. 21 Ibid at para 63. 68 THE OBLIGATION TO SELF-ACCOMMODATE VOL. 14 The arbitrator did not explain why he imposed an obligation on employees to self-accommodate, beyond noting that family and work obligations “will sometimes be difficult to reconcile [and] parents may have to make difficult choices to reconcile their conflicting obligations.”22 According to the arbitrator, these choices may include having to pay for childcare, choosing more expensive accommodations to live close to work, or accepting lower-paying work.23 He rejected earlier authorities that held that family status protection should not be interpreted in a more restrictive manner than other grounds of discrimination and specifically rejected the idea that employers should be expected to establish terms and conditions of employment that avoid conflict with “each and every characteristic of family status.”24 He expressed the concern that “[t]o find discrimination in every such circumstance of adverse effect would freeze the employer's ability to act to meet its economic needs as virtually every action could have some negative effect on the parental duties of one employee or another.”25 Finally, the arbitrator expressed the view that parents are to be expected to “work together … to split their parental duties so as to be able to accommodate their workplace duties.”26 In a similar vein, the arbitrator in Alberta (Solicitor General) v Alberta Union of Provincial Employees (Jungwirth) also rejected the union’s submission that family status should be treated in the same manner as other grounds of discrimination, remarking that “family status discrimination cannot possibly be interpreted as arising in any situation in which a work requirement results in some interference, no matter how minimal, with a parental obligation.”27 He held that “[p]art of any examination of whether a prima facie case has been established for family status discrimination must therefore include an analysis of the steps taken by the employee him or herself to balance their family and worklife responsibilities.”28 The grievor in Jungwirth, the mother of an eleven year old, sought accommodation from having to work some night shifts, a requirement that arose following the reassignment of a co-worker who had been working straight nights. In concluding that the grievor had not established a prima facie case of discrimination, the arbitrator drew an analogy between family status claims and the claims of disabled employees: 22 Ibid at para 55. 23 Ibid. 24 Ibid at para 60. 25 Ibid at para 56. 26 Ibid at para 64. 27 Alberta (Solicitor General) v Alberta Union of Provincial Employees (Jungwirth Grievance) (2010), 192 LAC (4th) 97, 101 CLAS 8 (ALRB) at para 64 [Jungwirth]. 28 Ibid. VOL. 14 JOURNAL OF LAW & EQUALITY 69 Given the need to balance work and family, parental responsibilities also involve, in the Board’s view, diligently exploring reasonable alternatives to ensure night time coverage. Otherwise, no single parent could ever be assigned to night shifts or late evening shifts. While not covered in detail in the evidence, it can be assumed that the Grievor made appropriate care arrangements for her son when she was assigned to the afternoon shift which runs from 3 pm - 11 pm. Someone had to feed her son, ensure he did his homework, and make sure he went to bed at an appropriate time. The Grievor’s mother assisted in this regard although it was not clear what supplementary arrangements, if any, were in place. With respect to the night shift, in order for the Board to conclude that there was a serious interference with the grievor’s parental obligations, the Board needed to be satisfied that reasonable alternatives for caring for her son at night were not available to the grievor. In this sense, we view the evidentiary burden for establishing a prima facie case for family status discrimination as being analogous to the burden on employees asking for accommodation on the basis of disability. Such employees have the onus of first establishing, through appropriate evidence, that they have a physical or mental condition that requires accommodation in their work setting. In the case of family status, the an [sic] employee also bears the onus of providing sufficient evidence of the absence of reasonable alternatives for care.29 The Court of Appeal in Johnstone relied upon both Power Stream and Jungwirth to support its conclusion that discrimination has not occurred unless “no reasonable childcare alternative is reasonably available to the employee.”30 However, as we argue below, requiring a claimant to show self-accommodation efforts in order to establish discrimination on the grounds of family status is problematic in three main ways: it is inconsistent with how human rights legislation should be interpreted; it 29 Ibid at paras 68-9. 30 Johnstone CA, supra note 7 at paras 88-90. 70 THE OBLIGATION TO SELF-ACCOMMODATE VOL. 14 creates a hierarchy among protected grounds; and it distorts the prima facie case analysis. II. SELF-ACCOMMODATION IS INCONSISTENT WITH A BROAD AND PURPOSIVE INTERPRETATION In Johnstone, the Court of Appeal addressed the initial question of whether “family status” simply defines a legal status or includes family obligations. The court embraced the more expansive definition that extends to family obligations such as childcare, acknowledging that human rights legislation is to be given a “broad interpretation to ensure the stated objects and purposes of such legislation are fulfilled.”31 In taking this approach, the court relied on well-established precedent.32 When discussing the purpose of legislation protecting against family status discrimination, the court recognized that many parents will be impeded from fully participating in the workforce unless reasonable accommodation of their childcare obligations is provided.33 Yet, when the court went on to consider what should be required to establish a prima facie case of family status discrimination, it failed to return to this overarching principle of interpretation. It did not ask whether imposing a requirement of self-accommodation advances the goal of enabling full participation by parents in the workforce. The Court of Appeal’s decision is not unique in this respect; there is little reference in any of the cases that adopt a self-accommodation requirement to the large body of Supreme Court of Canada jurisprudence discussing the interpretive principles to be applied to human rights legislation and the purposes it seeks to advance. In 1987, in Canadian National v Canada (Canadian Human Rights Commission) (Action Travail), Chief Justice Brian Dickson emphasized the importance of giving human rights legislation an interpretation that fully realizes its goals and objectives. 34 He described human rights legislation as giving rise to “individual rights of vital importance” that should not be minimized or enfeebled.35 Likewise, Commission Scolaire 31 Ibid at para 61. 32 See Gould v Yukon Order of Pioneers, [1996] 1 SCR 571 at para 120, 133 DLR (4th) 449; University of British Columbia v Berg, [1993] 2 SCR 353 at 370, 102 DLR (4th) 665; Robichaud v Canada (Treasury Board), [1987] 2 SCR 84, at 89-90, 40 DLR (4th) 577; Insurance Corp of British Columbia v Heerspink, [1982] 2 SCR 145 at 157-58, 137 DLR (3d) 219; B v Ontario (Human Rights Commission) 2002 SCC 66 at para 44, [2002] 3 SCR 403. 33 Johnstone CA, supra note 7 at para 66. 34 Canadian National v Canada (Canadian Human Rights Commission), [1987] 1 SCR 1114, 40 DLR (4th) 193 [Action Travail]. 35 Ibid at 1134. VOL. 14 JOURNAL OF LAW & EQUALITY 71 Regionale de Chambly v Bergevin (Chambly) grounded the duty to provide reasonable accommodation to those who are adversely affected by a neutral rule in fundamental principles of equity and fairness. 36 Perhaps most germane to family status discrimination is the Supreme Court of Canada’s discussion in Brooks v Canada Safeway, a case about pregnancy exclusions in sick benefits insurance policies. Such exclusions were described as “sanctioning one of the most significant ways in which women have been disadvantaged in our society.” 37 The Court acknowledged that in order to remove the unfair disadvantage imposed upon working parents, the costs of caring for children may need to be shared by others. In Action Travail, the Supreme Court of Canada highlighted the importance of systemic remedies and endorsed employment equity programs as effective measures to combat “a continuing cycle of systemic discrimination” and “as an attempt to ensure that future applicants and workers from affected groups will not face the same insidious barrier that blocked their forebears.”38 The Court returned to this theme in Meiorin when, relying on Shelagh Day and Gwen Brodsky, it commented on the shortcomings of simply accommodating individuals who challenge the systems and structures that are designed for the majority, rather than changing those systems so that they are more inclusive.39 As Day and Brodsky argue, [t]he difficulty with this paradigm is that it does not challenge the imbalances of power, or the discourses of dominance, such as racism, ablebodyism and sexism, which result in a society being designed well for some and not for others. It allows those who consider themselves “normal” to continue to construct institutions and relations in their image, as long as others, when they challenge this construction are “accommodated” … Accommodation does not go to the heart of the equality question, to the goal of transformation, to an examination of the way institutions and relations must be changed in order to make them available, accessible, meaningful and rewarding for the many diverse groups of 36 Commission Scolaire Regionale de Chambly v Bergevin, [1994] 2 SCR 525 at 544, 115 DLR (4th) 609 [Chambly]. 37 [1989] 1 SCR 1219, 59 DLR (4th) 321 at 1238 [Brooks, cited to SCR]. 38 Action Travail, supra note 34 at 1116. 39 Shelagh Day & Gwen Brodsky, “The Duty to Accommodate: Who Will Benefit?” (1996) 75:3 Canadian Bar Review 433. 72 THE OBLIGATION TO SELF-ACCOMMODATE VOL. 14 which our society is composed. Accommodation seems to mean that we do not change procedures or services, we simply “accommodate” those who do not quite fit. We make some concessions to those who are “different”, rather than abandoning the idea of “normal” and working for genuine inclusiveness.40 Agreeing with these observations, Justice Beverley McLachlin used Meiorin’s situation as a good example of how the conventional analysis prevents us “from rigorously assessing a standard which, in the course of regulating entry to a male-dominated occupation, adversely affects women as a group.”41 The Court challenged employers to design their workplace rules in ways that reflect all members of society and that accommodate the differences among individuals: “They must build conceptions of equality into workplace standards. … The standard itself is required to provide for individual accommodation, if reasonably possible.”42 These cases implore us to require employers to design workplace standards that take into account the childcare obligations of working parents rather than simply making exceptions for those parents who have extraordinary difficulties securing satisfactory childcare arrangements. To limit family status protection to those parents who have extraordinary childcare obligations and who, unlike the majority of parents, cannot manage their own childcare obligations without assistance from their employers profoundly undershoots the aspirational goals for anti-discrimination laws endorsed by the Supreme Court of Canada in cases like Action Travail and Meiorin. It is not possible to reconcile these decisions with a requirement that, before imposing any obligation on an employer, working parents must first prove that they have exhausted all reasonable childcare alternatives. Arguably, it is precisely the fear of disrupting the traditional workplace standards that motivates the imposition of hurdles on family status claimants such as the obligation to self-accommodate.43 However, this approach leaves no room for questioning whether it is discriminatory to design workplace standards such that the vast majority of working parents are required to make difficult choices about the cost of childcare, acquiring more expensive housing to be close to their workplace, accepting lower paying work, or forgoing certain types of work altogether. These are 40 Ibid at 462. 41 Meiorin, supra note 14 at paras 41-2. 42 Ibid at para 68 [emphasis in original]. 43 See Shilton, supra note 6. VOL. 14 JOURNAL OF LAW & EQUALITY 73 decisions that workers who do not have childcare responsibilities are not required to make. The approach of requiring parents to self-accommodate will do little to break down the barriers that inhibit full participation in the workforce by working parents, and particularly by working mothers, which is an explicit goal of human rights legislation. If night shifts, rotating shifts, and other inflexible scheduling rules have historically created barriers to full participation in the workforce for parents and, in particular, for mothers, are the purposes of anti-discrimination laws satisfied if protection is only afforded to parents who have “extraordinary” challenges in securing childcare? Are we sanctioning the imposition of a disproportionate amount of the costs of child rearing upon parents if we require them to first make all reasonable efforts to secure childcare that accommodates their workplace demands before seeking accommodation from their employers? III. REQUIRING SELF-ACCOMMODATION CREATES A HIERARCHY AMONG PROTECTED GROUNDS The second basis for criticizing the trend towards self-accommodation is that, despite suggesting otherwise, cases that require family status discrimination claimants to self-accommodate create a hierarchy among protected grounds by setting a more onerous test for family status claims compared to claims under other grounds of discrimination. Furthermore, as argued below, the jurisprudential justification that courts have relied on to create this requirement is both flawed and counter to Supreme Court of Canada jurisprudence. The three-step prima facie test in Moore has been applied in cases of discrimination based upon race,44 religion,45 physical and mental disability,46 place of origin,47 sex,48 and sexual orientation.49 As a matter of statutory interpretation, when a legislature lists all of the protected grounds of discrimination together and expresses no distinctions among them, it is reasonable to conclude that it intends all of the grounds of discrimination to be governed by the same legal tests. Recently, in Quebec (Commission des droits de la personne et des droits de la jeunesse) v Bombardier, the Supreme Court of Canada 44 Peel Law Association v Pieters, 2013 ONCA 396, 363 DLR (4th) 598. 45 Amir v Webber Academy Foundation, 2015 AHRC 8. 46 Vancouver Area Network of Drug Users v British Columbia Human Rights Tribunal, 2015 BCSC 534, 385 DLR (4th) 530. 47 Association of Professional Engineers and Geoscientists of Alberta v Mihaly, 2016 ABQB 61, 30 Alta LR (6th) 125. 48 Sones v District of Squamish, 2016 BCHRT 99. 49 Garneau v Buy-Rite Foods and Others, 2015 BCHRT 77. 74 THE OBLIGATION TO SELF-ACCOMMODATE VOL. 14 confirmed the test in Moore and stated that the same legal test applies regardless of the grounds for discrimination. 50 In dealing with other grounds of discrimination than family status, courts have refused to add additional elements to the test for prima facie discrimination. In Telecommunications Workers Union v Telus Communications, the Alberta Court of Appeal specifically rejected the conclusion of the arbitrator and the lower court that it was necessary to demonstrate an employer’s knowledge of an employee’s disability in order to establish a prima facie case of discrimination. It found that “‘knowledge’ should not be added as a fourth element of the prima facie case test.”51 In Johnstone, the Court of Appeal accepted that the test for finding prima facie discrimination on the basis of family status should be “substantially the same” as other grounds of discrimination and that “[t]here should be no hierarchies of human rights.”52 However, the court suggested that a “flexible and contextual” approach to application of the test is appropriate to different factual situations and different grounds of discrimination,53 and, on this basis, it justified its imposition of a self- accommodation requirement. The court relied upon two cases in support of this analysis, but neither supported the addition of a more specific requirement to the test for prima facie discrimination.54 The first case, Canada (Human Rights Commission) v Canada (Armed Forces) (Morris), was used to support the proposition that the test for a prima facie case is 50 Quebec (Commission des droits de la personne et des droits de la jeunesse) v Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39 at para 69, [2015] 2 SCR 789 [Bombardier]. We wish to be clear that the application of a given legal test must be based on the same elements and the same degree of proof in every case. This is necessary in order to maintain the uniformity, integrity, and predictability of the law. We therefore fail to see how the flexibility that the commission says must characterize the prima facie discrimination test can affect the process aside from making it possible to take the circumstances of each case, and, in particular, the ground of discrimination being alleged, into account. Thus, although the nature of the evidence that is presented may vary from case to case, the “legal test” does not change. What can vary are the circumstances that might make it possible to meet the requirements of the various elements of the analysis, and the courts must adopt an approach that takes the context into account. 51 2014 ABCA 154 at para 29, 95 Alta LR (5th) 285. Similarly, in Stewart, supra note 12, the Supreme Court of Canada reiterated that “discriminatory intent” by an employer is not required to make out a prima facie case (at para 24) and also rejected adding a different sort of fourth element to the prima facie test, namely the requirement of a finding of stereotypical or arbitrary decision-making (at para 45). 52 Johnstone CA, supra note 7 at para 81. 53 Ibid at para 83. 54 For a contrary argument, see Osborne-Brown, supra note 6. VOL. 14 JOURNAL OF LAW & EQUALITY 75 meant to be flexible.55 The court in Morris rejected the argument of the Attorney General that, in employment cases where the claimant alleges he was not hired because of discrimination, he must adduce comparative evidence about successful candidates in order to establish a prima facie case of discrimination. The court forwent more precise tests in favour of the flexibility that was inherent in Ontario Human Rights Commission v Simpsons-Sears (O’Malley),56 said: [T]he legal definition of a prima facie case does not require the Commission to adduce any particular type of evidence to prove the facts necessary to establish that the complainant was the victim of a discriminatory practice as defined in the Act. Paragraph 7(b) requires only that a person was differentiated adversely on a prohibited ground in the course of employment.57 The second case that the Court of Appeal in Johnstone referred to was Syndicat Northcrest v Amselem, a religious discrimination case in which the Supreme Court of Canada rejected the proposition that religious belief must be objectively grounded and held instead that a claimant must only demonstrate a sincere belief.58 The Federal Court of Appeal suggested that Amselem was an example of a flexible and contextual approach to assessing when a prima facie case of discrimination is established. In SMS Equipment, Justice June Ross cautioned against using Amselem out of context, noting that it was a case of direct discrimination under Québec’s Charter of Human Rights and Freedoms59 as opposed to a case of adverse effect discrimination under a human rights code.60 In any event, Amselem expanded the breadth of protection for religious freedom and actually made it easier for claimants to show that their right to religious freedom was triggered. The Court did not further restrict the freedom by applying additional restrictions inapplicable to other protected grounds. In contrast, the Court of Appeal in Johnstone applied a more rigid test by setting out 55 Canada (Human Rights Commission) v Canada (Armed Forces), 2005 FCA 154, 334 NR 316 [Morris]. 56 Ontario Human Rights Commission v Simpsons-Sears, [1985] 2 SCR 536, 23 DLR (4th) 321 [O’Malley]. 57 Morris, supra note 55 at para 27. 58 Syndicat Northcrest v Amselem, [2004] SCC 47, 241 DLR (4th) 1 [Amselem]. 59 CQLR, c C-12. 60 SMS Equipment QB, supra note 5 at para 75. 76 THE OBLIGATION TO SELF-ACCOMMODATE VOL. 14 specific prerequisites that are not found in Supreme Court of Canada decisions that set out the test.61 The Court of Appeal in Johnstone also justified its imposition of a self- accommodation requirement within the prima facie test by suggesting that this imposes no extra burden on complainants. Relying on arbitral jurisprudence,62 it compared the requirement to self-accommodate to the ongoing obligation disabled complainants have “to notify the employer of changes in their restriction.”63 The problem with this analogy is that it wrongly equates an element of the accommodation analysis in disability cases with the imposition of a requirement in family status cases at the stage of determining whether prima facie discrimination is made out. The Court of Appeal in Johnstone confirmed an obligation on employees to take all reasonable steps to resolve conflicts between parental duties and workplace obligations before seeking accommodation. In assessing whether accommodation is required, or whether the accommodation obligation should continue, it seems perfectly reasonable to require disabled employees to notify their employer of changes in their condition. Similarly, it might be reasonable to impose the same obligation on family status claimants to inform their employers if their family obligations change—for example, if their children reach school age. However, this kind of burden is not comparable to requiring employees seeking family status accommodation to exhaust options for self-accommodation in order to even access the accommodation analysis. No doubt, many employees with disabilities find ways of overcoming the challenges presented by their workplace without seeking accommodation from their employer. However, the fact that an employee could overcome the challenges on their own has not been offered as a reason not to find a case of prima facie discrimination when they experience an adverse impact from a workplace rule that relates to their disability. For example, in Moore, the parents of Jeffrey, a child with a severe learning disability, enrolled him in private schools when the public school system failed to provide him with adequate educational services. In essence, the parents self-accommodated. However, the Supreme Court of Canada still found that the school board discriminated against Jeffrey and, 61 See O’Malley, supra note 56 at para 18: “[W]here an employer for genuine business reasons adopts a rule or standard which is on its face neutral, and which will apply equally to all employees, but has a discriminatory effect upon a prohibited ground on one employee or group of employees in that it imposes, because of some special characteristic of the employee or group, obligations, penalties, or restrictive conditions not imposed on other members of the work force.” 62 Alliance Employees Union, Unit 15 v Customs and Immigration Union (2011), 205 LAC (4th) 343, 105 CLAS 150 (OLRB). 63 Johnstone CA, supra note 7 at para 91. VOL. 14 JOURNAL OF LAW & EQUALITY 77 among other relief provided, ordered the school board to reimburse his family for the costs of private school. The Court did not ask if Jeffrey’s parents could afford private school. It did not ask if Jeffrey’s parents had sought financial assistance from other sources, familial or public. The Court simply asked if Jeffrey had a disability (dyslexia); whether he experienced an adverse impact with respect to a service (denied meaningful access to public education); and whether his dyslexia was a factor in the adverse impact.64 Having established these three factors, the Court found a prima facie case of discrimination and proceeded to consider whether the school board had accommodated him to the point of undue hardship.65 Most importantly, persons making a claim of discrimination on the basis of other prohibited grounds do not need to establish that they face extraordinary challenges within their protected group. To require this of claimants is to tacitly acknowledge that individuals are expected to tolerate some discrimination before they can seek legal protection. Disabled employees do not have to prove that the obstacles they experience are more serious than the vast majority of employees with similar disabilities. 66 Those seeking alterations of workplace standards that respect their religious practices are not required to prove that the adverse impact of the workplace standards on their religious practices is greater than the majority of employees practising their religion. The Supreme Court of Canada in Moore expressly rejected the idea of comparing the 64 Moore, supra note 11 at para 34. 65 Similarly, in Eldridge v British Columbia (Attorney General), [1997] 3 SCR 624, 151 DLR (4th) 577, a case of adverse discrimination under section 15 of the Canadian Charter of Rights and Freedoms (Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]), the Court did not require the appellants to prove that they could not afford to pay for their own sign language interpreters before finding that the government had breached section 15 of the Charter when it failed to provide sign language interpreters when deaf persons accessed medical care. 66 One might argue this is the implication of rejecting the comparator-group analysis in finding discrimination in Moore, supra note 11. See Gwen Brodsky, “Moore v. British Columbia: Supreme Court of Canada Keeps the Duty to Accommodate Strong” (2013) 10 Journal of Law & Equality 85, who argues that it strengthens the duty to accommodate to put the focus on identifying the positive obligations on service providers to accommodate rather than asking whether a claimant is worse off than others like her. However, Moore has also been criticized for rejecting a systemic approach. See Joanna Birenbaum & Kelly Gallagher-MacKay, “From Equal Access to Individual Exit: The Invisibility of Systemic Discrimination in Moore” (2013) 10 Journal of Law & Equality 93, who see the decision to set aside the systemic remedies ordered against the provincial government as restricting the potential to address systemic barriers to inclusion. While this may be particularly negative for disabled individuals, it may also undermine the struggles of other protected groups. 78 THE OBLIGATION TO SELF-ACCOMMODATE VOL. 14 claimant to others within his affected group. The Court described the risk of comparing Jeffrey only to other special needs students as “perpetuating the very disadvantage and exclusion from mainstream society the Code is intended to remedy.” 67 IV. EXPLORING SELF-ACCOMMODATION AT THE PRIMA FACIE STAGE DISTORTS THE ANALYSIS Finally, the imposition of an obligation to self-accommodate before seeking accommodation by an employer has led to a number of problems in the discussion and analysis of adverse effect in family status cases. Below, we discuss and expand on the concerns and criticisms that have been identified in the jurisprudence regarding the self-accommodation requirement. We also highlight problems this approach poses for adjudicators, including that it necessitates intrusive inquiries into the claimant’s personal life and requires adjudicators to decide whether the costs of childcare are “unreasonable,” which is a largely undefined limit. In SMS Equipment, the Alberta Court of Queen’s Bench expressed concern about the “one-sided and intrusive inquiries on complainants in family status discrimination cases” that result when a self-accommodation test is applied at this stage: Complainants are not only required to prove that a workplace rule has a discriminatory impact on them, but that they were unable to avoid that impact. Thus the Grievor was subjected to an examination regarding her relationship or lack thereof with the biological fathers of her children, her choice of caregivers for her children and her personal financial circumstances. She had to undergo this examination before the Employer would even consider a request for an accommodation in the form of a shift exchange that she had arranged with another willing employee. The search for accommodation is intended to be “a multi-party inquiry,” involving the employer, the union and the complainant: [citations omitted]. Converting this multi-party inquiry into a one-sided investigation could certainly deter complainants from pursuing claims for discrimination based on family status, and thus detract from 67 Moore, supra note 11 at para 31. VOL. 14 JOURNAL OF LAW & EQUALITY 79 the policy goal of removing discriminatory barriers to full participation in the workforce.68 There are multiple examples of this kind of intrusive inquiry in family status discrimination cases. In Miraka v ACD Wholesale Meats, the employer queried why the applicant had not attempted to obtain a babysitter on Craigslist or Kijiji to care for his young children during a brief and unexpected situation. 69 In Clark v Bow Valley College, the complainant was seeking a three-week extension of her maternity leave beyond the date the employer was demanding her return.70 In addressing this complaint, the complainant’s financial circumstances were reviewed in great detail, including multiple years of tax returns. The employer questioned why she did not obtain a line of credit using the equity in her home. When questioned about her husband’s ability to care for the child, the complainant had to reveal details about his medical condition and his degree of compliance with treatment. She was also challenged about why she did not trade in her car. In Fanshawe College of Applied Arts and Technology v Ontario Public Service Employees Union, the employer asked the grievor in cross-examination whether her husband, who owned and operated a restaurant and was unavailable to provide childcare, viewed his business as a greater priority than his children.71 Such inquiries are not only intrusive but often demonstrate a judgmental attitude towards underlying family choices. For example, in many cases of family status discrimination, money is a key element of the adverse effect or disadvantage claimed by the employee. In SMS Equipment, it was estimated that it would cost R.C.S. an additional $5,000 annually to arrange childcare during the days when she worked nights. In Flatt v Treasury Board, the grievor was seeking to work from home full- time for a year following her maternity leave to permit her to breastfeed her child.72 On the question of self-accommodation, the Federal Public Service Labour Relations and Employment Board focused on the grievor’s evidence that she had located a daycare close to her office that would have permitted her to breastfeed her child while she worked out of the office, but she rejected this option because she “would be working just to cover the costs of daycare.”73 The Board concluded this level of expense was not 68 SMS Equipment QB, supra note 5 at para 77. 69 2016 HRTO 41 at para 54. 70 Clark, supra note 10 at paras 16-19, 22-3. 71 (2015), 257 LAC (4th) 311, 123 CLAS 245 [Fanshawe]. 72 2014 PSLREB 2, 248 LAC (4th) 1. 73 Ibid at para 183. 80 THE OBLIGATION TO SELF-ACCOMMODATE VOL. 14 “in and of itself sufficient to make the choice unreasonable.”74 The Board acknowledged that if the costs of the daycare had affected the grievor’s ability to “provide the other necessities of life” for her child, the situation may have been different.75 This analysis often reflects a criticism of the choices that families make to balance their financial needs with their childcare obligations. The adjudicators and judges who have considered claims of financial hardship in the context of family status have not made it clear why cost is not a reasonable foundation for a claim of adverse effect or what costs are “unreasonable.” As noted above, the Court of Appeal in Johnstone concluded that a family status complainant must show that neither they nor their spouse can meet their enforceable child care obligations while continuing to work and that available childcare services or alternative arrangements are not “reasonably accessible” to them so as to meet their work needs.76 While the court does not say specifically whether cost factors into the equation of reasonable accessibility, it seems that the court expects that working parents will bear reasonable costs of childcare before seeking accommodation from their employer, implying that only “unreasonable” childcare costs will trigger the protection of human rights codes.77 This expectation is inconsistent with the approach to financial adverse effects taken in cases dealing with other prohibited grounds. In Chambly, three Jewish teachers employed by the respondent school board took a day off to celebrate Yom Kippur. The school board granted them a leave of absence but without pay, and the union grieved on their behalf seeking reimbursement for one day’s pay. The Supreme Court of Canada concluded that the school board’s calendar, which was neutral on its face, had the effect of adversely discriminating against Jewish teachers. The Court specifically rejected the application of a de minimis test to the evaluation of the existence of prima facie discrimination. In responding to the school board’s argument that the adverse effect (loss of one day’s pay) was so minimal that it did not constitute discrimination, the Court said: With regard to accommodation it must be remembered that the entire annual salary of the teachers in this case was based upon 200 working days. It is of course impossible for Jewish teachers to make up for a lost day by working for example, on Saturday, Sunday, Christmas 74 Ibid. 75 Ibid. 76 Johnstone CA, supra note 7 at para 93. 77 See Fanshawe, supra note 71 at para 65. VOL. 14 JOURNAL OF LAW & EQUALITY 81 or Easter. A teacher can only teach when the school is open and the pupils are in attendance. If five days or a week’s work was missed, there is no doubt that it would constitute a significant loss to the teacher. There is no difference in principle in the loss of one day’s pay. Family budgets and financial commitments are based upon the total annual salary. The loss of a whole day’s pay when that cannot be made up, is of very real significance to teachers and their families. Further, the idea that because the effect of the discrimination is not great no steps need be taken in order to make a reasonable accommodation is unacceptable. The whole aim and purpose of human rights legislation is to prevent discrimination. If there can be discrimination without any consequences, then the very purpose of the legislation is defeated.78 Working parents seeking accommodation are not asking to be paid for not working because their childcare obligations conflict with their work obligations. Typically, they are asking that their schedule of work or place of work be altered so as to minimize their costs of childcare. It is not clear why this has been seen as inappropriate by so many decision-makers considering family status cases. Some may argue that if a prima facie case of family status discrimination is established every time a work obligation requires working parents to expend money for childcare, then virtually every working parent would be a victim of family status discrimination and entitled to be accommodated by their employer. That may be the logical conclusion of applying a strict Moore prima facie test to family status claims. However, that does not mean that all working parents will ask that their work schedule or place of work be altered. Unless they perceive that there is some way to organize their work that will reduce their childcare costs, or other particular burdens, there will be no point in seeking accommodation, and this will likely be the case for most working parents. On the other hand, if only cases of unreasonable costs get over the prima facie hurdle, it has a great impact on the outcome of the decision; opportunities to reduce the overall cost of childcare will remain unexplored, even where no cost or hardship would be imposed on the employer. And we share Ross J’s concern that intrusive and judgmental inquiries into childcare choices—along with a reluctance to consider costs 78 Chambly, supra note 36 at paras 26-7. 82 THE OBLIGATION TO SELF-ACCOMMODATE VOL. 14 as evidence of adverse effect—are likely to deter working parents from pursuing claims for discrimination. V. ARE FLOODGATE CONCERNS JUSTIFIED? As is clear in the earlier discussion of financial impact, it appears from the cases studied that courts and adjudicators that have imposed an obligation on working parents to self-accommodate before they ask their employers to accommodate their parental obligations fear that, without this extra limitation, every conflict between family and working responsibilities will give rise to a finding of discrimination. They speculate that there would be a dramatic negative impact on employers and workplaces if discrimination could be established so readily. Thus, there is something of a “sky is falling” tone to their comments and little specificity regarding the predicted disasters. For example, in Jungwirth, there was no evidence as to what the impact might be if all single parents of young children were exempt from working night shifts, yet the arbitrator was clearly alarmed by the proposition. The nature of the accommodation that working parents generally seek is an alteration to either their work schedule or the location of their work. Working parents are not asking their employers to pay them for caring for their children. In reality, employers regularly make adjustments of employee schedules and work locations for a variety of reasons without incurring serious hardship. In any event, a finding of prima facie discrimination is only the first step in the inquiry. The second step is to consider whether the employer can accommodate the working parents’ need without undue hardship. Some adjudicators see this as being too heavy a burden. The concern of adjudicators appears to be that, once a prima facie case is established, the entire onus to accommodate is placed on the employer, and the employee would have no responsibility to search for childcare options themselves. Requiring the employee to exhaust childcare options beforehand lessens the onus placed on the employer under the accommodation analysis. However, this depiction of the employer’s burden to accommodate is not accurate, and adjudicators considering discrimination on the basis of other prohibited grounds have long interpreted the accommodation obligation so as to ensure that employees shoulder some of the burden. A number of decisions reference Central Okanogan School District No 23 v Renaud,79 where the Supreme Court of Canada described the search for accommodation as a “multi-party inquiry” and indicated that complainants 79 See e.g. SMS Equipment QB, supra note 5 at para 77; Sayoran v Deco Automotive, 2011 HRTO 236 at para 44. VOL. 14 JOURNAL OF LAW & EQUALITY 83 have a duty to “assist in securing appropriate accommodation.” 80 In disability cases, employees bear the following obligations: to advise the employer of the need for accommodation; to provide medical evidence to support the need for accommodation and the nature of restrictions; to participate in the process of determining appropriate accommodations; to accept reasonable accommodation, which prevents an employee from insisting on the “perfect” accommodation; to participate in treatment that might mitigate restrictions; and to advise the employer of any change in restrictions.81 When employees fail to meet these duties, adjudicators have found that the employer’s duty to accommodate is at an end. As well, the duty to accommodate is only to the point of undue hardship. There is well-developed law on the scope of this duty, which balances the impact on the employee of the failure to accommodate against the burden placed on the employer. Setting a higher bar for proving a prima facie case in family status cases halts the analysis before any consideration of accommodation, thus precluding any consideration of reducing or minimizing the burden of childcare on working parents, no matter how minimal the impact on the employer might be. The existing law on reasonable accommodation could certainly ensure that the concern of adjudicators that employees are required to play a role in balancing work and childcare obligations is addressed, without creating a unique test for family status discrimination. In family status cases, this could easily include placing obligations on employees to participate in the search for accommodation by searching out and paying for childcare. When the accommodation being sought imposes some hardship on the employer, adjudicators will need to make difficult decisions about the extent of the costs of childcare that employers are reasonably expected to bear, but this is a primary role of adjudicators in discrimination claims and fits comfortably inside the reasonable accommodation analysis. Over time, courts and adjudicators are likely to develop guidelines for accommodation in cases of family status discrimination that respond to the concerns that have driven the imposition of the self-accommodation requirement but in a manner that furthers the goal of human rights legislation. VI. CONCLUSION Serious problems are created by imposing a requirement to self- accommodate on employees and considering it to be a prerequisite to 80 [1992] 2 SCR 970 at 994, 95 DLR (4th) 577. 81 Donald JM Brown & David M Beatty, Canadian Labour Arbitration, 4th ed, vol 7 (Aurora: Canada Law Book, 2006) at 6130. 84 THE OBLIGATION TO SELF-ACCOMMODATE VOL. 14 establishing a prima facie case of discrimination. This approach is inconsistent with the broad and purposive approach to interpreting human rights obligations and will do little to break down the barriers that inhibit full participation in the workforce by working parents—particularly working mothers and single parents—which is an explicit goal of human rights legislation. And despite the claim in Johnstone that adding the requirement to self-accommodate to the test for prima facie discrimination for family status cases does not create a hierarchy of grounds, or impose additional burdens on family status claimants, we conclude that it does just that. In addition, imposing this requirement, and treating family status claims more onerously than others, has distorted the analysis of adverse effects. The enquiries made of employees about their childcare arrangements and personal choices in the cases under study have been intrusive and often judgmental. And there has been a general unwillingness to consider cost as an adverse effect to be taken into account, despite it being a relevant consideration in cases dealing with other prohibited grounds. While similar enquiries and arguments might be made if the issue of self-accommodation was dealt with as an element of the accommodation analysis, the inquiry would be less one-sided since it would be balanced by considerations of whether the workplace accommodation sought by the employee caused undue hardship to the employer. Indeed, there will likely be cases where there will be no need to challenge employees about their family’s choices at all, such as where accommodation can be provided with little or no hardship. SMS Equipment is an example of just this kind of case. While the employer chose to call no evidence on undue hardship, the evidence seemed to show that permitting R.C.S. to work straight days created no hardship whatsoever for the employer; another employee was happy to work straight nights in order for her to work straight days. Despite the availability of this simple solution, the employer’s argument that she had failed to self-accommodate led to extensive inquiries about her childcare arrangements and how much time she spent with her children, the details of her financial situation, her relationship with the fathers of her children, and all of the choices she had made around these aspects of her personal life. She clearly found these inquiries humiliating, and it puts arbitrators in a difficult position to be called upon to judge them. We all make choices about how to parent, how to manage our finances, and how to balance work and family, and few of us find this kind of scrutiny welcome. Of course, if considering such facts is necessary in order to determine whether a particular accommodation sought by an employee is reasonable, then some invasion of the privacy and dignity of employees may be required. Disability accommodation cases—and cases involving other VOL. 14 JOURNAL OF LAW & EQUALITY 85 prohibited grounds—sometimes require such inquiries, but, over many years of developing approaches in these cases, adjudicators, courts, and human rights commissions have emphasized the importance of respecting dignity, privacy, and self-determination. For the reasons discussed above, we conclude that adjudicators in family status cases should take an approach consistent with developed human rights law, including respect for these considerations, by dealing with considerations of self- accommodation, including the financial costs relating to childcare within the analysis of reasonable accommodation, after the well-established test for prima facie discrimination has been met. The concern that treating family status in the same way as other protected grounds will result in runaway costs for employers is reminiscent of when disability claims began to be adjudicated. The experience with accommodation on the basis of disability was that demands were imposed on employers incrementally as adjudicators and employers became more creative about ways in which disabled employees could be accommodated. It is likely that adjudicators will similarly adopt a cautious, incremental approach to reasonable accommodation for working parents. While many adjudicators continue to assess self-accommodation as a requirement for making out a prima facie case of discrimination, there are some indications that the concerns we have set out are troubling to others. In the judicial review decision of SMS Equipment, Ross J found that the flexibility of the Moore test does not justify the addition of another element in family status cases.82 And in Misetich v Value Village Stores, the recent Ontario Human Rights Tribunal decision, the adjudicator disagreed with the inclusion of an obligation to self-accommodate as part of the prima facie test for family status discrimination. In her opinion, cases that imposed a self-accommodation requirement “conflated the test for discrimination and accommodation.”83 She did go on to state that not every negative impact on a family need would amount to discrimination, suggesting that assessing the negative impacts of an impugned rule as part of the test for prima facie discrimination “may include consideration of the other supports available to the applicant.”84 However, the adjudicator saw this as being different from requiring applicants to self-accommodate: Requiring an applicant to self-accommodate as part of the discrimination test means the applicant bears the onus of 82 SMS Equipment QB, supra note 5 at para 77. 83 Misetich, supra note 10 at paras 48. 84 Ibid at para 55. 86 THE OBLIGATION TO SELF-ACCOMMODATE VOL. 14 finding a solution to the family/work conflict; it is only when he/she cannot that discrimination is established. This is different than considering the extent to which other supports for family-related needs are available in the overall assessment of whether an applicant has met his/her burden of proving discrimination.85 Because the case before the adjudicator was dismissed on other grounds entirely, this decision does not provide an illustration of what this distinction might mean in practice, and there is no way to assess whether there is some benefit to this approach, as opposed to the one we have outlined. It now seems likely that the question of whether and how self- accommodation should form part of the enquiry in family status discrimination cases involving childcare obligations will only be resolved when it attracts further attention from appellate courts and perhaps the Supreme Court of Canada. Hopefully, such further consideration will provide needed guidance about how to align these cases with established human rights law and ensure that the broad and expansive purposes of the law are met. 85 Ibid at para 56. Discrimination and Family Status: The Test, the Continuing Debate, and the Accommodation Conversation Sheila Osborne-Brown ABSTRACT There has been much uncertainty about the interpretation of “family status” as a prohibited ground of discrimination in the context of parent- to-child caregiving. In Canada (Attorney General) v Johnstone, the Federal Court of Appeal appeared to have eliminated the confusion. However, the test has been criticized for inserting accommodation principles into the determination of a prima facie case. The Ontario Human Rights Tribunal has rejected the idea of a special test for whether an employee has proven family status discrimination. Yet a specific test to establish a prima facie case of family status is consistent with previous decisions relating to other prohibited grounds of discrimination. The Johnstone test assesses whether an employee has a caregiving need that would trigger a request for accommodation in the workplace, and is consistent with determining when an employee’s personal family responsibility ends and an employer’s responsibility begins. However, rather than arguing about legal tests in an adversarial forum, a more satisfactory solution to addressing family status needs is to address them in the workplace. The article highlights the need for constructive communication between employees and managers to respond to work/family conflicts and outlines guidance from human rights commissions as to when a family situation should start an accommodation conversation and how to have it. Senior Counsel at the Canadian Human Rights Commission (CHRC) in Ottawa. Although this article is informed by my work as counsel for the CHRC in some family status cases, the views expressed are my own. I extend sincere thanks to Elizabeth Shilton, and to the peer reviewers and editors at the Journal of Law & Equality, especially Léa Brière-Godbout and Stacy Belden, for their help. Thanks also to colleagues at the CHRC with whom I have engaged in discussion and analysis of the issues, including Marcella Daye, Ikram Warsame, Samar Musallam, Daniel Poulin, Valerie Phillips, Fiona Keith, and Patrick O’Rourke. Any errors are my own. I also particularly acknowledge the complainants who go through the long process of adjudication and whose courage and perseverance leads to systemic change. 88 DISCRIMINATION AND FAMILY STATUS VOL. 14 I. INTRODUCTION After much uncertainty about the interpretation of “family status” in relation to parent-to-child caregiving, the Federal Court of Appeal appeared to have concluded the debate with its decision in Canada (Attorney General) v Johnstone.1 The four-step test to determine whether an employee has proven a prima facie case of family status discrimination (Johnstone test) was praised in a Canadian Human Rights Reporter editorial and has been incorporated into the Canadian Human Rights Commission’s guidance on family caregiving accommodation.2 It has also been criticized, however, for inappropriately inserting accommodation principles—traditionally part of the second step of the evaluation of whether an employer has breached a statutory human rights code (the Meiorin test3)—into the first part of that evaluation.4 The latter concern was expressed by the Ontario Human Rights Tribunal (OHRT) in Misetich v Value Village Stores Inc.5 The tribunal also held that the Johnstone test should not be applied in the Ontario context, rejecting the idea of a special test for whether an employee has proven family status discrimination. This article aims to defend the approach set out in Johnstone from these criticisms. I argue that the formulation and application of a specific test to prove a prima facie case of family status is consistent with previous decisions that have set forth special tests relating to other prohibited grounds of discrimination. In adopting its four-step test, the Federal Court of Appeal was aware of the need for flexibility in the tests applied in various human rights contexts. Rather than setting in stone a test for family status discrimination in a caregiving context in Johnstone, the court left 1 Canada (Attorney General) v Johnstone, 2014 FCA 110 [Johnstone], affirming the Federal Court decision Canada (Attorney General) v Johnstone, 2013 FC 113, upholding the tribunal decision 2010 CHRT 20. Issued at the same time as the decision in the companion case Canadian National Railway Company v Seeley, 2014 FCA 111, affirming 2013 FC 117, upholding 2010 CHRT 23 [Seeley], which was heard by the same panel of the Federal Court of Appeal and relies upon the same analysis to evaluate the prima facie case of family status. 2 Shelagh Day, “New Law on Caregiving Responsibilities: A Real Step Forward” (2014) 15:4 Canadian Human Rights Reporter 13; CHRC, A Guide to Balancing Work and Caregiving Obligations: Collaborative Approaches for a Supportive and Well- Performing Workplace (Ottawa: Minister of Public Works and Government Services, 2014), online: the door open to adaptations of the test in future cases. This approach is consistent with guidance from the Supreme Court of Canada6 and from the Federal Court of Appeal7 regarding the interpretation of human rights legislation and the prima facie case test. Further, I examine concerns about inserting accommodation into the prima facie case test and suggest that this part of the Johnstone test is about the employee assessing whether he or she has a caregiving need that would cause him or her to approach the employer to seek accommodation. Understood in this light, this element simply reflects the consensus throughout tribunal and arbitral decisions that not all family situations will constitute a need that triggers the duty to accommodate under human rights statutes. This point highlights the need for constructive communication between employees and managers to respond to work/family conflicts. Although tests are useful in the course of litigation to analyze an employee’s prima facie case, they often do not adequately respond to real- life workplace situations. “Accommodation conversations” often have to take place both at the beginning and at several points throughout a lengthy accommodation situation depending upon the employee’s caregiving needs. I conclude with guidance to assist employers, employees, and unions in fulfilling their responsibilities in the day-to-day multi-party inquiry that will lead to a more inclusive workplace. To help parties improve the quality of life in the workplace, I address how to know when a family situation should start the accommodation conversation and how to have that conversation. Avoiding a journey to the hearing room would render moot the question of the appropriate test for the prima facie case. II. “FAMILY STATUS” AND PARENT-TO-CHILD CAREGIVING: DEFINING THE GROUND “Family status” is a prohibited ground of discrimination under most Canadian human rights legislation. Statutory definitions vary. In the Canadian Human Rights Act (CHRA), 8 it is undefined, while Ontario defines it as “the status of being in a parent and child relationship.”9 Any 6 Ontario (Human Rights Commission) v Simpson-Sears Ltd, [1985] 2 SCR 536 at 546-7 [O’Malley]; CNR v Canada (Human Rights Commission) (“Action Travail”), [1987] 1 SCR 1114 at paras 24, 28-9, 32; New Brunswick (Human Rights Commission) v Potash Corporation of Saskatchewan Inc, [2008] 2 SCR 604 at paras 65-7 (per McLachlin CJ in dissent) [Potash]; Gould v Yukon Order of Pioneers, [1996] 1 SCR 571 at para 7; B v Ontario (Human Rights Commission), 2002 SCC 66 at para 44 [B v Ontario]. 7 Morris v Canada (Canadian Armed Forces), 2005 FCA 154 [Morris]. 8 Canadian Human Rights Act, RSC 1985, c H-6, s 3 [CHRA]. 9 Human Rights Code, RSO 1990, c H-19, s 10. 90 DISCRIMINATION AND FAMILY STATUS VOL. 14 discussion of family situations involves many legal, societal, and cultural questions, and, thus, family status cases inevitably raise the thorny issue of choice versus obligation. Given that accommodation is provided so that an employee will be able to carry out the duties of the job, these cases raise a fundamental question: when does an employee’s personal family responsibility end and an employer’s responsibility begin? Initially, respondents argued that family status should be limited to the “status” of a person as a family member—for example, wife, mother, father, daughter, either in general (“absolute status”) or in relation to a particular person (“relative status”).10 Caregiving is not included, they argued. This interpretation is not surprising or devoid of logic. Other prohibited grounds are more intuitively associated with an individual’s characteristics. The person on the street can readily understand what it means to say that an employer cannot treat someone differently because of their race, religion, sex, or disability but would not instinctively associate the term “family status” with the social and legal roles, and emotional ties, that come with family membership or the obligation of an employer not to discriminate because of family responsibilities. At least in the federal context, the legislative history regarding the addition of the term “family status” does not provide much help in settling the question.11 However, a consensus has now emerged that parent-child caregiving situations fall within the scope of family status. In 1993, in Brown v Department of National Revenue (Customs and Excise), the Canadian Human Rights Tribunal (CHRT) made the first move in this direction.12 In light of a purposive interpretation of section 2 of the CHRA, the CHRT concluded that because parents have obligations within the family, employers have a concomitant duty to try to accommodate these obligations. Anything less, the tribunal held, would “render meaningless the concept of ‘family status’ as a ground of discrimination.”13 The leading appellate authorities in British Columbia and federally have now accepted that adverse effects related to caregiving responsibilities can constitute family status discrimination.14 However, the debate continues on other 10 The respondent in Johnstone, the federal government, took this position up to the Federal Court of Appeal level. Johnstone, supra note 1 at paras 53-7; see also B v Ontario, supra note 6, regarding absolute versus relative status. 11 See discussion of legislative history in Canada (Attorney General) v Mossop, [1993] 1 SCR 554 at 618-20, in which the main lesson was said to be that the meaning of the term was to be left to the Commission, tribunals, and the courts. 12 [1993] CHRD No 7 at 20 [Brown]. 13 Ibid. 14 Health Sciences Association of British Columbia v Campbell River and North Island Transition Society, 2004 BCCA 260 [Campbell River]; Johnstone, supra note 1; see also the cases cited in Johnstone (at para 59); also of note is the analysis of Arbitrator VOL. 14 JOURNAL OF LAW & EQUALITY 91 important issues, including whether there should be a special test for a prima facie case of family status discrimination (and, if so, what test); what steps a complainant must have taken to make arrangements for childcare before seeking accommodation from the employer; and whether the caregiving at issue has to be necessary and vital to the obligations of a parent to their child. Two lines of case law took shape in the aftermath of Brown. One followed Brown, applying the same test at the prima facie stage in family responsibility cases as in other discrimination complaints, and the other adopted a narrower, more stringent test first developed by the British Columbia Court of Appeal in Health Sciences Association of British Columbia v Campbell River and North Island Transition Society. 15 Campbell River expressed concern that interpreting family status too broadly would potentially cause “disruption and great mischief” in the workplace.16 The court therefore held that the prima facie case requires “a change in a term or condition of employment imposed by an employer [that] results in serious interference with a substantial parental or other family duty or obligation of the employee.” 17 The CHRT, in Hoyt v Canadian National Railway, rejected the floodgates concern, noting that “[h]uman rights codes, because of their status as ‘fundamental law’, must be interpreted liberally so that they may better fulfill their objectives.”18 It saw Campbell River as improperly singling out “family status” for a more restrictive approach than other grounds of discrimination. 19 It also concluded that the workplace disruption concern is better considered under the undue hardship part of the Meiorin test: “Undue hardship is to be proven by the employer on a case by case basis. A mere apprehension that undue hardship would result is not a proper reason, in my respectful opinion, to obviate the analysis.”20 The debate framed here has continued within the case law. Tribunal, arbitral, and judicial decision-makers have swung back and forth between the broad and generous approach, generally urged by employees and human rights advocates, and the more narrow and restrictive definition, Christie in Canadian Staff Union v Canadian Union of Public Employees, [2006] NSLAA No 15 (QL) [Reynolds]. 15 Campbell River, supra note 14. 16 Ibid at para 38. 17 Ibid at para 39. 18 Hoyt v Canadian National Railway, 2006 CHRT 33 at para 120 [Hoyt]. 19 Ibid at paras 117-18. 20 Ibid at paras 119-21. 92 DISCRIMINATION AND FAMILY STATUS VOL. 14 advocated by employers and their counsel. As we will see, similar issues were at the front and centre of the OHRT’s criticism of the Johnstone test. III. JOHNSTONE AND MISETICH: OVERVIEW A. Johnstone Fiona Johnstone was a Canada Border Services Agency (CBSA) customs inspector working a variable-shift schedule, as was her husband. The couple had two small children. Johnstone asked for a fixed shift schedule to accommodate childcare needs. The CBSA agreed to a fixed shift schedule but only on less than full-time hours. Part-time status would negatively affect various employment benefits. 21 The evidence at the tribunal showed that other people were allowed to work a full-time fixed- shift schedule for religious and medical reasons, but not people who needed it for childcare reasons.22 The Johnstone complaint was ultimately decided by the Federal Court of Appeal.23 When formulating the test for a prima facie case, the court took into account the two broad lines of jurisprudence sketched above, the CHRA, and the necessity for the test to be flexible and contextual. It held that the complainant must demonstrate: (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.24 21 Johnstone, supra note 1 at para 8. 22 Ibid at para 28. 23 Initially, the CHRC dismissed the complaint. The Federal Court sent it back to the CHRC on judicial review. The matter was referred to the Canadian Human Rights Tribunal (CHRT) where Johnstone was successful. She was also largely successful before the Federal Court, which did not interfere with the CHRT’s broad test for family status. The Federal Court of Appeal dismissed the respondent’s appeal. See Johnstone, supra note 1. 24 Ibid at para 93. In the companion case, Seeley, supra note 1, the court analyzed the prima facie case using the Johnstone test, affirming that Seeley had demonstrated a prima facie case of family status discrimination. Denise Seeley was a freight train conductor with Canadian National Railway (CNR) based out of Jasper. Although on layoff, she was able to still work her way up the seniority ladder. Seeley’s husband worked for CNR as a locomotive engineer and was away for extended periods. CNR VOL. 14 JOURNAL OF LAW & EQUALITY 93 B. Misetich Tonka Misetich worked in a production position at Value Village on straight day shifts. She developed a repetitive strain injury. She was offered temporary, modified duties as an accommodation, working variable shifts including nights.25 Misetich declined the modified duties because the hours of work would interfere with preparing evening meals for her mother. Over several months, the employer repeatedly asked Misetich for more information about her caregiving obligations, including medical evidence to substantiate them. Misetich resisted these inquiries. She eventually provided a note from her doctor, but this was deemed insufficient by the employer because it came from Misetich’s doctor and not her mother’s. Misetich subsequently provided her own handwritten note advising that she and her mother had the same doctor. Because she refused to provide more medical information including confirmation that she “had done everything reasonable and within her control to find alternate care for her mother … [and that] her mother required care after 5:00 p.m. and on weekends to ensure her mother’s health and safety was not jeopardized,” the employer dismissed Misetich.26 The OHRT rejected the Johnstone test on three grounds. First, there should not be a special test for family status—it should be the same as for all other grounds.27 Second, the tribunal criticized Johnstone for setting too high a standard in holding that the childcare obligation at issue must engage a legal responsibility for the child; in particular, the tribunal thought that this part of the test was difficult to apply in eldercare situations.28 Finally, the tribunal expressed the view that the third part of the test requires a complainant to “self-accommodate,” which conflates the prima facie case test with the evaluation of whether an employer has accommodated to the point of undue hardship according to the Meiorin analysis. 29 Instead, Misetich adopted a test requiring an applicant “to establish that he or she is recalled everyone on layoff to work in Vancouver. Seeley and two other female conductors told CNR they could not move to Vancouver because of childcare responsibilities. All three were willing to work out of or near the Jasper terminal. They were terminated when they did not report to Vancouver. The tribunal found for the complainants, accepting a broad interpretation of family status. CNR’s judicial review of Seeley’s case was dismissed. In upholding that decision, the Federal Court of Appeal found it significant that CNR had given no information to Seeley regarding the length of stay in Vancouver nor the childcare options there. 25 Misetich, supra note 4 at para 7. 26 Ibid at paras 27-30. 27 Ibid at para 42. 28 Ibid at para 47. 29 Ibid at para 48. 94 DISCRIMINATION AND FAMILY STATUS VOL. 14 a member of a protected group, has experienced adverse treatment, and the ground of discrimination was a factor in the adverse treatment.”30 IV. ADDRESSING THE OHRT’S OBJECTIONS TO THE JOHNSTONE TEST The crux of the OHRT’s objections is that the Johnstone test, like that in Campbell River, is too stringent. Since one of the aims of the Federal Court of Appeal was to formulate a test that would create some cross-jurisdictional consistency,31 it is important to examine the OHRT’s criticisms closely before dismissing the Johnstone test outside of the federal context.32 A. First Objection: There Should Be No Special Test for Family Status The OHRT’s concern about a special test for family status discrimination is misplaced. Such tests are not unusual. As discussed below, courts and tribunals have done this in regard to several different grounds. The traditional starting point for the prima facie case analysis is the test from the Supreme Court of Canada’s decision in O’Malley v Simpsons Sears: “A prima facie case in this context is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant's favour in the absence of an answer from the respondent-employer.”33 This evidentiary burden is not a heavy one. It may be met by “any means of proof—writings, presumptions, testimony, admissions and the production of real evidence” and hearsay evidence may 30 Ibid at para 50. The tribunal found Misetich had not produced medical evidence, that her claim of a caregiving need was a bald assertion, and that providing evening meals for her mother was not adversely affected by varying shifts. It found that the “after the fact” evidence given by Misetich about her caregiving situation was not relevant given that she did not provide it to the employer at the time she requested accommodation. Ibid at para 72. 31 This is one of the reasons for the court having applied a “correctness” standard of review. Johnstone, supra note 1 at paras 47-51. (However, recent Supreme Court of Canada jurisprudence interpreting s 5 of the CHRA would arguably result in a reasonableness standard being applied if Johnstone were to be heard now. See Canadian Human Rights Commission v Attorney General of Canada, 2018 SCC 31 at paras 42-3, 51-2 (majority decision) [Matson/Andrews].) 32 The Supreme Court of Canada has also given guidance favouring a consistent interpretation of human rights statutes. See e.g. Potash, supra note 6 at para 68; Quebec (Commission des droits de la personne et des droits de la jeunesse) v Montreal (City), 2000 SCC 27 at para 45 [City of Montreal], cited in Quebec (Commission des droits de la personne et des droits de la jeunesse) v Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39 at para 31 [Bombardier]. See also the reasons of Rowe and Côté JJ in Matson/Andrews, supra note 31, which concurred with the majority in the result but would have applied a correctness standard of review based in part on the Supreme Court’s guidance that “human rights protections must be interpreted consistently across jurisdictions unless legislative intent clearly indicates otherwise” (at para 84) and referred to the correctness standard applied in Johnstone and Seeley (at para 81). 33 O’Malley, supra note 6 at para 28. VOL. 14 JOURNAL OF LAW & EQUALITY 95 be admitted.34 The complainant needs to put into evidence just enough credible facts that prove discrimination on the normal civil standard of balance of probabilities 35 before the burden of proof shifts to the respondent to offer a defence or justification.36 The shifting burden of proof formula is not the only important legacy of O’Malley.37 It also held that a complainant need not prove intention to discriminate. It is the adverse effect of an employment rule on the complainant that is important. The Court reiterated the importance of interpreting the rights in human rights statutes broadly and in accordance with their special purpose.38 In the last few years, the prima facie case test in Moore v British Columbia has been relied upon frequently. Under that test, complainants must show “that they have a characteristic protected from discrimination under the Code; that they experienced an adverse impact with respect to the service; and that the protected characteristic was a factor in the adverse impact.”39 The Supreme Court of Canada has since clarified the third part of the Moore test in Quebec (Commission des droits de la personne et des droits de la jeunesse) v Bombardier Inc. (Bombardier Aerospace Training Center). It is necessary only to show a link between the allegedly 34 Bombardier, supra note 32 at para 67. 35 In Bombardier, the Supreme Court of Canada rejected the argument of the Quebec Commission des droits de la personne et des droits de la jeunesse that the normal civil standard of proof is relaxed in human rights cases. Ibid paras 55ff. 36 Ibid at paras 59-67. 37 Jennifer Koshan, “Under the Influence: Discrimination under Human Rights Legislation and Section 15 of the Charter” (2014) 3:1 Can J Human Rights 115 at 118; Denise Réaume, “Defending the Human Rights Codes from the Charter” (2012) 9 JL & Equality 67 at 70-1. 38 O’Malley, supra note 6 at paras 12-13. 39 Moore v British Columbia (Education), 2012 SCC 61 at para 33. To enter into an in- depth discussion of the prima facie case test in the context of statutory human rights, it would be necessary to explore the debate as to whether over the years, the prima facie case test has been moving in the direction of analyses for alleged violations of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. Some stakeholders feared the Court would apply a Charter-type analysis in the Moore decision. This article is not the place for exploration of this issue. However, it should be noted that regarding Charter analysis versus statutory human rights analysis, many commentators have urged tribunals and courts to keep the two separate. See e.g. Leslie A Reaume, “Postcards from O’Malley: Reinvigorating Statutory Human Rights Jurisprudence in the Age of the Charter” and Andrea Wright, “Formulaic Comparisons: Stopping the Charter at the Statutory Human Rights Gate” both in Fay Faraday, Margaret Denike & M Kate Stephenson, eds, Making Equality Rights Real: Securing Substantive Equality under the Charter (Toronto: Irwin Law, 2006) 373 and 409; D. Réaume, supra note 37. 96 DISCRIMINATION AND FAMILY STATUS VOL. 14 discriminatory action or rule and the ground or that the ground was a factor in the discriminatory rule or action; there is no need to show a “causal link.”40 This finding emphasized the importance of O’Malley’s recognition of the adverse effect41 and recognized that proof of intent is unnecessary because neutral standards may have a discriminatory effect and that “some discriminatory conduct involves multiple factors or is unconscious.”42 The OHRT in Misetich essentially treats Moore as establishing a uniform test to be applied in determining whether a complainant has proven a prima facie case and rejects others for making the test for family status discrimination “higher than for other forms of discrimination.”43 However, it makes no reference to the principles set out in O’Malley or to the consensus understanding that the evidentiary burden is not a heavy one, no matter the formulation of the test applied in regard to a particular ground of discrimination. Use of the Moore test as an overarching articulation of the prima facie case should not preclude tests that merely clarify the evidentiary framework that guides a decision-maker in assessing the prima facie case.44 The reference in O’Malley to “proof which covers the allegations” opens the possibility that different grounds and different contexts require different facts to be proved. Courts have also recognized that the prima facie case must be determined in a flexible and contextual way.45 Justice Anne Mactavish of the Federal Court recently expanded upon this guidance: 40 Bombardier, supra note 32 at paras 43-52. The Court thus rejected the interpretation of the Quebec Court of Appeal on this issue (although ultimately agreeing with the outcome on the discrimination complaint) and confirmed the Ontario Court of Appeal’s interpretation in Peel Law Association v Pieters, 2013 ONCA 396; see also Stewart v Elk Valley Coal Corp, 2017 SCC 30 [Elk Valley], in which the Supreme Court of Canada confirmed the Moore test (and also confirmed that “arbitrariness or stereotyping is not a stand-alone requirement for proving prima facie discrimination” (at para 45)) but in which the justices came to significantly different determinations as to whether there was a link on the facts between the termination of the employee and the prohibited ground of disability (addiction). The majority (per McLachlin CJ) upheld as reasonable the decision of the Human Rights Tribunal that termination was not because of addiction. In a strong dissent, Gascon J found that the employee’s disability was indeed a factor in his dismissal and that the accommodation provided was inadequate. Two justices (Moldaver and Wagner JJ) agreed with Gascon J about the link to disability but thought the employee had been accommodated. 41 Bombardier, supra note 32 at paras 32, 42. 42 Ibid at paras 40-1. 43 Misetich, supra note 4 at para 45. 44 This is in accordance with the Supreme Court of Canada’s commentary in Bombardier, supra note 32 at para 69. 45 See e.g. the Federal Court of Appeal decision in Morris, supra note 7. VOL. 14 JOURNAL OF LAW & EQUALITY 97 The O’Malley test is flexible enough to allow the Tribunal to have regard to all of the factors that may be relevant in a given case. These may include historic disadvantage, stereotyping, prejudice, vulnerability, the purpose or effect of the measure in issue, and any connection between a prohibited ground of discrimination and the alleged adverse differential treatment.46 Decision-makers have provided examples of evidence that will suffice in certain contexts and depending on the nature of the allegation. These special tests have been described as “illustrations of the application of the guidance” in O’Malley.47 For example, cases about discrimination in the hiring process have referred to the tests set forth in Shakes v Rex Pak Limited 48 and Israeli v Canadian Human Rights Commission and the Public Service Commission.49 In the latter, the CHRT modified the Shakes test for the prima facie case to respond to the different factual situation, despite that fact that it was described as “relatively fixed in the case law.”50 In Quebec (Commission des droits de la personne et des droits de la jeunesse) v Montreal (City), the Supreme Court of Canada clarified the types of evidence that may be considered in a disability discrimination complaint.51 The Court interpreted the term “handicap” under the Quebec Charter of Human Rights and Freedoms to encompass both actual and perceived limitations, the cause of which is irrelevant.52 The term must not be defined narrowly, and the definition must be flexible enough to incorporate changing biomedical, social, or technological factors. 53 46 Canada (Attorney General) v First Nations Child and Family Caring Society of Canada, 2012 FC 445 at para 338, affirmed at 2013 FCA 75. 47 Lincoln v Bay Ferries Ltd, 2004 FCA 204 at para 18. 48 Board of Inquiry (Human Rights Tribunal of Ontario), June 1981, 139 [Shakes]. 49 (1983) 4 CHRR D/1616 [Israeli]. 50 The test for a prima facie case in Shakes, supra note 48, is: (1) the complainant was qualified for the particular employment; (2) the complainant was not hired; and (3) someone obtained the position who was no better qualified than the complainant but lacked the attribute on which the complainant based their human rights complaint. In Israeli, no one had been hired, but the employer continued to seek another applicant after rejecting the complainant, and, therefore, comparative evidence was not available. The CHRT found that this was not an impediment to the complainant’s case and that the complainant could offer other evidence proving discrimination. 51 City of Montreal, supra note 32. 52 Charter of Human Rights and Freedoms, RSQ 1976, c C-12. 53 City of Montreal, supra note 32 at paras 76-7, 80-1. In Tanzos v AZ Bus Tours Inc, 2007 CHRT 33, affirmed on other grounds in 2009 FC 1134 [Tanzos], the CHRT cited the test from City of Montreal, supra note 32, which states that “in order to prove a prima 98 DISCRIMINATION AND FAMILY STATUS VOL. 14 Similarly, the Court’s decisions in Syndicat Northcrest v Amselem54 and S.L. v Commission scolaire des chenes55 set forth an analytical approach in the context of allegations of infringement of freedom of religion, encompassing both a subjective and objective component.56 The former requires only a sincere belief that has a nexus with religion.57 The objective component requires more than trivial and insubstantial interference.58 This requires a contextual analysis in each case; the Court noted that “not every action will … receive automatic protection under the banner of freedom of religion,”59 although neither should it be “prematurely narrowly construed.”60 In Johnstone, the Federal Court of Appeal relied on Amselem to conclude that “specific types of evidence and information that may be applied to establish a prima facie case of discrimination largely depend upon the nature of the prohibited ground of discrimination at issue.”61 The court also directly addressed the guidance in O’Malley on the type of evidence necessary to prove a prima facie case of discrimination in various contexts. The main point was that the prima facie case test is flexible and can be adapted to particular allegations and factual situations. In finding that Johnstone had established a prima facie case of discrimination based on the ground of family status, the Federal Court of Appeal started by facie case a complainant has to (a) prove the existence of a distinction, exclusion or preference in the decision not to employ or continue to employ; (b) that the distinction is based on a real or perceived disability; and (c) that the distinction, exclusion or preference had the effect of nullifying or impairing the complainant’s right to the full and equal exercise of human rights and freedoms’ (Tanzos, para 32). 54 [2004] 2 SCR 551 [Amselem]. 55 [2012] 1 SCR 235. 56 The test has been applied by human rights tribunals. See e.g. Barker v St Elizabeth Health Care, 2016 HRTO 94. But see the comments of the Alberta Court of Queen’s Bench in SMS Equipment, supra note 4 at para 75, which urges caution in applying Amselem given that it was a case interpreting freedom of religion and not a claim of adverse effect discrimination. 57 The subjective part of the analysis requires the complainant to show that “(1) he or she has a practice or belief, having a nexus with religion, which calls for a particular line of conduct … irrespective of whether a particular practice or belief is required by official religious dogma or is in conformity with the position of religious officials; and 2) he or she is sincere in his or her belief.” Amselem, supra note 54 at para 56. 58 This component requires the claimant to “show that the impugned contractual or legislative provision (or conduct) interferes with his or her ability to act in accordance with his or her religious beliefs in a manner that is more than trivial and insubstantial.” Ibid at para 59. 59 Ibid at para 61. 60 Ibid at para 62. 61 Johnstone, supra note 1 at para 86. I will argue below that the reference to “trivial and insubstantial,” while appropriate in the context of the two-part test in Amselem, is superfluous and possibly not in accordance with recent Supreme Court of Canada guidance regarding the prima facie case. VOL. 14 JOURNAL OF LAW & EQUALITY 99 applying the O’Malley test.62 Then, based on the importance of flexibility and context and taking account of cases involving other grounds of discrimination, the court formulated a special test to provide an evidentiary framework for the ground of family status in the childcare context. The court was careful to point out that the test applies to proving “a prima facie case where workplace discrimination on the ground of family status resulting from childcare obligations is alleged.”63 The Johnstone test does not replace the O’Malley test or a more general test for adverse effect discrimination, such as Moore, but, instead, provides a useful guide for assessing whether a complainant has met the prima facie case test in the context, and on the specific facts, of alleged discrimination linked to family status. Further, despite its criticism of a special test for family status, the OHRT in Misetich effectively did something strikingly similar.64 It first set forth the Moore-like test for discrimination. However, it then created what is in essence a test specific to the context of alleged family status discrimination in employment. The tribunal noted that “the employee will have to do more than simply establish a negative impact on a family need”;65 rather, “the negative impact must result in real disadvantage to the parent/child relationship and the responsibilities that flow from that relationship, and/or to the employee’s work.” 66 Finally, the tribunal remarked that “assessing the impact of the impugned rule is done contextually and may include consideration of the other supports available to the applicant. These supports are relevant to assessing both the family- related need and the impact of the impugned rule on that need.”67 In setting forth what is effectively a special test for family status, the OHRT is simply doing what many other courts and tribunals have done: assessing the evidence offered to demonstrate a prima facie case in a way that is appropriate given the nature of the allegations. This lessens the impact of its criticism of Johnstone. Further, in saying that one generic test (and nothing but that test) must be used for every ground of discrimination and for every situation, the OHRT may be minimizing the importance of the flexibility that a complainant could benefit from when a decision- maker is analyzing whether there is prima facie discrimination. For all of 62 Johnstone, supra note 1 at para 82. 63 Ibid at para 93 [emphasis added]. 64 Misetich, supra note 4 at para 43. Elizabeth Shilton makes a similar point in Elizabeth Shilton, “Family Status Discrimination: ‘Disruption and Great Mischief’ or Bridge over the Work-Family Divide?” in this issue. 65 Misetich, supra note 4 at para 54. 66 Ibid. 67 Ibid at para 55. 100 DISCRIMINATION AND FAMILY STATUS VOL. 14 these reasons, I do not see that establishing a test for a prima facie case of family status is either contrary to O’Malley or Moore or inappropriately sets out specific ground-related criteria. B. Second Objection: The “Legal Responsibility” Standard is Too High The second factor of the Johnstone test requires that the childcare obligation “engages the individual’s legal responsibility for that child, as opposed to a personal choice.”68 Having rejected the appellant’s submission that family status does not include parent-to-child caregiving,69 the court nevertheless acknowledged that not all childcare responsibilities are contemplated by the ground of family status.70 To distinguish those that are, the court seized on the idea that childcare obligations should bear the traditional hallmark of immutable or constructively immutable characteristics to be in line with other grounds of discrimination.71 The court found that protected caregiving responsibilities must “form an integral component of the legal relationship between a parent and a child.”72 Examples include not leaving a young child at home without supervision in order to go to work (which, at its extreme, could bring criminal liability) or other legal standards such as those in child welfare legislation. 73 The court distinguished family trips and extracurricular sports events, which “do not have this immutable characteristic since they result from parental choices rather than parental obligations.”74 Although the court went into significant detail about how to draw the line between childcare activities that fall, or do not fall, within the ground of family status, its application of the legal obligation factor reveals a broad and pragmatic approach. The court did not enter into a detailed discussion of Johnstone’s situation or whether she had demonstrated obligations pursuant to criminal or child welfare legislation. The determination that both of her children were toddlers and, therefore, could not be left on their own without breaching legal obligations was sufficient to meet the second factor.75 Anyone with young children could satisfy this leg of the test. 68 Johnstone, supra note 1 at para 95. 69 Ibid at paras 53-67. 70 Ibid at paras 68-9. 71 Ibid at para 70. 72 Ibid. 73 Ibid at paras 70-1. 74 Ibid at para 72. 75 Ibid at para 102. Similarly, in Seeley, the court stated: “There is no fundamental dispute that Ms. Seeley meets the two first factors of the test for a prima facie case of discrimination. She was the mother of two young children at the time she was called to Vancouver, and these children were under her care and supervision and that of her husband. She and her VOL. 14 JOURNAL OF LAW & EQUALITY 101 This application of the legal obligation factor is part of the rationale for rejecting the appellant’s argument that childcare obligations do not fall within family status. The court had already found that “without reasonable accommodation for parents’ childcare obligations, many parents will be impeded from fully participating in the work force so as to make for themselves the lives they are able and wish to have.” 76 It is those workplace rules that conflict with core parental responsibilities that stand to impede participation. The OHRT’s concern was that “[t]here may be many obligations that caregivers have that may not emanate from their legal responsibilities, but are still essential to the parent/child relationship.” 77 However, the OHRT did not acknowledge the broad interpretation applied on the facts of both Johnstone’s and Denise Seeley’s situations, the way that the Federal Court of Appeal was careful to leave the door open to modifications to the test depending on the context, and the court’s recognition that the type of evidence needed will vary on a “case-by-case basis.”78 Indeed, decision-makers dealing with family status cases should take the Federal Court of Appeal at its word and apply the Johnstone test contextually and flexibly. In some situations, childcare responsibilities that may not be considered “legal responsibilities” under a strict legal definition could still constitute a prima facie case of family status. For example, if a child has an opportunity to travel to an important sports event and for some reason (for example, age, mental health, physical disability) needs the parent to accompany him or her, this could constitute the type of obligation within the scope of the second factor. The OHRT also expressed concern that “the test of legal responsibility is difficult to apply in the context of eldercare.”79 The Federal Court of Appeal specifically limited its analysis to childcare obligations. It did not present the Johnstone test as being equally applicable to eldercare. However, the court signalled that the prima facie case test may have to be adapted to other caregiving situations that will be different. A decision- husband had a legal responsibility to ensure that their children would be cared for and supervised while they were away at work.” Seeley, supra note 1 at para 44. 76 The court went on to say that “[t]he broad and liberal interpretation of human rights legislation requires an approach that favours a broad participation and inclusion in employment opportunities for those parents who wish or need to pursue such opportunities.” Johnstone, supra note 1 at para 66. 77 Misetich, supra note 4 at para 46. The tribunal agreed with the Ontario Human Rights Commission (OHRC) that “limit[ing] human rights protections to legal responsibilities imposes an unduly onerous burden on applicants.” 78 Johnstone, supra note 1 at para 99. 79 Misetich, supra note 4 at para 47. 102 DISCRIMINATION AND FAMILY STATUS VOL. 14 maker could easily adapt the Johnstone test to an eldercare situation as was done in Canada (Attorney General) v Hicks, in which the Federal Court, relying on Johnstone, found that a “similar rationale can be applied for the analysis of eldercare obligations,” the non-fulfillment of which can attract liability under provincial statutes and criminal responsibility.80 The court treated eldercare obligations as being entrenched in Canadian societal values and thus deserving of protection.81 In general, when deciding a family status case on the basis of the Johnstone test, the decision-maker must be aware of the reasoning behind the legal responsibility part of the test. It is not sufficient to simply extract the four-part test from the case and apply it without understanding why the court crafted the test as it did, what the factors represent, and the court’s broad and pragmatic approach.82 Further, the test is necessarily flexible in order to advance the principle of equality of opportunity.83 For all of these reasons, I am of the view that the legal obligation requirement is not as stringent as the criticism developed in Misetich portrays it to be. C. Third Objection: Requiring “Self-Accommodation,” Conflates the Prima Facie Case Test with the Accommodation Analysis Another factor at issue in the Johnstone test is that “the individual advancing the claim must show … 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.” In including this factor in the test, the Federal Court of Appeal reviewed several labour 80 2015 FC 599, upholding 2013 CHRT 20 [Hicks]; see also a recent case from the Federal Court of Appeal, Attorney General of Canada v Bodnar et al, 2017 FCA 171 at para 37, in which the court suggests in obiter that the “four criteria” in Johnstone may “need to be nuanced in the case of elder care responsibilities as there might be a practical and moral need to provide urgently needed care for a disabled parent or to take them to medical appointments as opposed to a legal requirement to do so as would exist in the case of a child.” 81 Hicks, supra note 80 at paras 70-1. 82 In the recent case Guilbault v Treasury Board (Department of National Defence), 2017 PSLREB 1, the complainant asked to take his unpaid lunch break at the end of the day to arrive home earlier to help with the care of his four children. Instead of dealing with the second and third factors of the Johnstone test separately, the Public Sector Labour Relations and Employment Board’s adjudicator blended the analysis, which appears to have led to a misapplication of the second factor and a finding that the grievor did not have a “legal responsibility” (at para 80). However, I believe that applying the interpretation in Johnstone, the grievor (and his spouse) did indeed have a legal responsibility to care for the young children. There was no choice involved in that obligation. Melding the two factors would probably have made no difference to the outcome in this particular case, but it demonstrates the importance of looking at the court’s interpretation of the factors in Johnstone before applying the test. 83 Johnstone, supra note 1 at para 98. VOL. 14 JOURNAL OF LAW & EQUALITY 103 arbitration cases84 as well as the CHRT’s decision in Hoyt, noting that the latter “rested on the claimant having made considerable efforts.”85 And, in commenting specifically on the third factor in the test, the court stated: “[T]he complainant must demonstrate that he or she is facing a bona fide childcare problem. This is highly fact specific, and each case will be reviewed on an individual basis in regard to all of the circumstances.”86 In Misetich, the OHRT found fault with the third factor for requiring an applicant to “establish that he or she could not self-accommodate the adverse impact caused by a workplace rule.”87 Given this, one would have expected a prima facie case test that does not require the complainant to demonstrate that they have sought solutions to their caregiving situation; rather, this type of balancing of family and work responsibilities should take place in the Meiorin analysis once the complainant has proven a prima facie case.88 However, that was not the approach taken. Indeed, Misetich also included this type of balancing in its formulation of the prima facie case analysis, calling it a “consideration of the other supports available to the applicant.” Although the tribunal insisted that this requirement is “different in a fundamental way” from self-accommodation, 89 the two ideas are more similar than they are different. Further, this search for alternative solutions as part of an employee’s initial responsibility has been something that many decision-makers have incorporated into the determination of proof of a prima facie case of discrimination under the ground of family status. This initial responsibility is part of what the CHRT had in mind in Brown when it spoke of “a parent’s rights and duty to strike a balance coupled with a clear duty on the part of an employer to facilitate and accommodate that balance.”90 Moreover, the court in Johnstone, although it referred to International Brotherhood of Electrical Workers, Local 636 v Power Stream Inc., where the phrase “self-accommodation” originated, did not use that term to describe 84 Johnstone, supra note 1 at paras 89-91. These included Alberta (Solicitor General) v Alberta Union of Provincial Employees (Jungwirth Grievance), [2010] AGAA No 5 (QL); Ontario Public Service Employees Union v Ontario (Liquor Control Board of Ontario) (Thompson Grievance), [2012] OGSBA No 155 (QL); Wright v Ontario (Office of the Legislative Assembly), [1998] OHRBID No13 (QL); International Brotherhood of Electrical Workers, Local 636 v Power Stream Inc (Bender Grievance), [2009] OLAA No 447, 186 LAC (4th) 180 [Power Stream]. 85 Ibid at para 92, citing Hoyt, supra note 18 at paras 123-4. 86 Ibid at para 96. 87 Misetich, supra note 4 at para 48. 88 This is what has been suggested as the proper approach in SMS Equipment, supra note 4. 89 Misetich, supra note 4 at paras 56-7. 90 See Brown, supra note 12. 104 DISCRIMINATION AND FAMILY STATUS VOL. 14 the employee’s obligation to canvass reasonable alternatives to resolving their childcare issues.91 I believe the word itself may actually be misleading and could cause confusion. Using the word takes an established term of art from the anti-discrimination lexicon and applies it in a way that departs from the accepted principle that accommodation is something the employer does in the workplace to enable the employee to carry out their job. Although the process of finding appropriate accommodation is a “multi-party inquiry,” that is not what the court means when it refers to the employee seeking reasonable alternative solutions for caregiving situations.92 What both the court and the OHRT seem to have had in mind is the process of the employee determining whether they have a need for accommodation “consistent with their duties and obligations as a member of society,” a concept that, along with non-discrimination and accommodation of needs, is embedded in the purpose section of the CHRA.93 It is reasonable to say that an employee would not know whether she has a need until she knows whether she can solve the caregiving issue within her own family. If she can, she does not have a need. The question of accommodation does not even arise. This brings us full circle to the key issue: how do employees, unions, and employers know when, and in what situations, purely personal responsibility for family caregiving becomes a situation in which the employer has a role to play in enabling the employee to carry out the job? The court in Johnstone drew an analogy with the requirements faced by complainants in disability cases who “must first establish that they have a disability and have an ongoing obligation to notify the employer of change in their restrictions.”94 An employee with a disability would not need accommodation if their disability does not impede their ability to do their work. They would not ask for accommodation because they would not need it. However, in disability cases, there are third party professionals who can provide an objective viewpoint on the alleged need. This generally will not be the case in family status cases unless the caregiving need involves a family member’s medical issue.95 91 Power Stream, supra note 84. 92 Central Okanagan School District No 23 v Renaud, [1992] 2 SCR 970 at para 43 [Renaud]. 93 CHRA, supra note 8, s 2; s 15 also refers to the “accommodation of the needs of an individual or class of individuals.” 94 Johnstone, supra note 1 at para 91, referring to Alliance Employees Union, Unit 15 v Customs and Immigration Union (Loranger Grievance), [2011] OLAA No 24 at para 45. 95 Decision-makers have found in some cases that an existing medical condition of the child or elder is relevant in the prima facie case analysis. E.g., Whyte v Canadian National Railway, 2010 CHRT 22 at para 177 [Whyte]; AB v City of Yellowknife et al, 2016 CanLII 19718 (NT HRAP) at paras 26-7 [AB]; Devaney v ZRV Holdings Limited et al, 2012 HRTO 1590 at paras 118, 131, 140ff [Devaney]; Rawleigh v Canada Safeway Limited, VOL. 14 JOURNAL OF LAW & EQUALITY 105 In most cases, there is no easy way to determine if an employee’s family caregiving situation is a need or a choice: whether the employee has exhausted his or her obligation to make “reasonable efforts to meet [his or her] childcare obligations through reasonable alternative solutions.”96 The third part of the Johnstone test might be seen as an attempt at an objective criterion to test need in the context of care responsibilities. This difficult task of determining and accommodating need would be better accomplished by employees, unions and employers working together in the discussion of the relevant issues. I return to the discussion of this process in the final section of the article. Finally, family status cases often involve societal issues that affect the family, including situations involving the intersection of childcare and gender roles,97 the unavailability of affordable childcare and housing,98 child custody and support arrangements or lack thereof, 99 the inaccessibility of childcare when working shifts or unusual hours,100 the mobility of the workforce,101 and the responsibility of adult children to care for aging parents.102 The threads of these contextual societal issues are woven throughout family status decisions. Decision-makers have also specifically referred to them in assessing whether a complainant has 2009 AHRC 6 at para 113ff [Rawleigh]. Medical evidence is appropriate in some circumstances. However, I would argue that there is a danger in over-emphasizing the need for medical information as it may not be appropriate in many family status cases. Requiring medical evidence when there is no medical issue at play could indeed result in a heavier evidentiary burden for complainants, contrary to O’Malley, supra note 6; Bombardier, supra note 32; Elk Valley, supra note 40. See Flatt v Attorney General of Canada, 2015 FCA 250, affirming 2014 PSLREB 02, leave to appeal to the Supreme Court of Canada denied 5 May 2016, in which the Federal Court of Appeal discussed the possibility of the necessity of medical evidence in some situations of alleged discrimination on the basis of sex or family status related to breastfeeding (at para 33). In this case, the court made the finding based on the evidence in the record that, inter alia, Ms Flatt’s situation did not meet the second factor of Johnstone (at para 35). 96 Johnstone, supra note 1 at para 93. 97 SMS Equipment, supra note 4; Seeley, supra note 1; Whyte, supra note 95; Richards v Canadian National Railway, 2010 CHRT 24 [Richards]. 98 Johnstone, supra note 1; Seeley, supra note 1; SMS Equipment, supra note 4. 99 Power Stream, supra note 84; Whyte, supra note 95; Richards, supra note 97. 100 Johnstone, supra note 1; Seeley, supra note 1; Hoyt, supra note 18; Whyte, supra note 95; Richards, supra note 97; Partridge v Botony Dental Corporation, 2015 ONSC 343, affirmed at 2015 ONCA 836 [Partridge]; Rawleigh, supra note 95; SMS Equipment, supra note 4. 101 Seeley, supra note 1; Whyte, supra note 95; Richards, supra note 97; Reynolds, supra note 14; Ontario Public Service Employees Union v Crown in Right of Ontario (Ministry of Natural Resources and Forestry), 253 LAC (4th) 79 [Bharti]. 102Misetich, supra note 4; Devaney, supra note 95; Hicks, supra note 80; Bharti, supra note 101. 106 DISCRIMINATION AND FAMILY STATUS VOL. 14 demonstrated a prima facie case.103 The societal context is particularly relevant to the analysis of need versus choice. And, although each case must be looked at individually, the case law gives us some guidance on arguable outside limits of the employee obligation to find reasonable solutions. Employees need not move to be closer to an employer or move from a rural or suburban setting to an urban setting with more childcare options.104 They will not have to engage a nanny or enter into childcare arrangements that are not affordable or are simply unsustainable given their employment and family situations. 105 They will not have to change child custody or support arrangements.106 They will not have to relocate on short notice or for an unknown period unless the employer gives them realistic assistance and information with new childcare arrangements.107 At the other end of the spectrum, a trend could be emerging that, if an employee enters into an employment arrangement with full knowledge that it will involve a certain shift or place of work and then asks for accommodation on the basis of family status, he or she will not be able to make out a prima facie case.108 This may be less related to the obligation to make reasonable alternative solutions and more to an expectation that an employee, acting in good faith, should have raised the issue before taking on the employment. I therefore suggest that the problem with “self-accommodation” is more a problem of vocabulary than of substance. Johnstone and Misetich both agreed with the concept of balancing family obligations with work and considering other supports that may be available to help an employee address a caregiving situation as part of the prima facie case. Other jurisdictions have also required that employees demonstrate that they have looked for alternative caregiving options. My proposal is to stop using the term “self-accommodation.” Finding other language for this process that 103 E.g. Johnstone, supra note 1 at paras 131-2, 140-2 (FC), 193, 231-3 (CHRT); Hoyt, supra note 18 at paras 60-7, 122-9; Hicks, supra note 80 at paras 70 (FC), 39-57 (CHRT); Bharti, supra note 101 at 19ff, 45ff; AB, supra note 95 at paras 31-4; Partridge, supra note 100 at paras 21-4, 27 (OCA), 91, 98 (OSC); see also Suen v Envirocon Environmental Services ULC, 2017 BCHRT 226 at paras 93-5 [Suen], in the context of an application to dismiss under s 27(1) of the British Columbia Human Rights Code, RSBC 1996, c 210. 104 Johnstone, supra note 1; Seeley, supra note 1. 105 Johnstone, supra note 1; AB, supra note 95; Partridge, supra note 100; SMS Equipment, supra note 4. 106 SMS Equipment, supra note 4; Power Stream, supra note 84; Whyte, supra note 95; Richards, supra note 97. 107 Seeley, supra note 1. 108 Reynolds, supra note 14; Bharti, supra note 101. VOL. 14 JOURNAL OF LAW & EQUALITY 107 does not cross the analytical divide between the first stage (prima facie case) and the second stage (justification/accommodation) of the overall discrimination analysis would be a step towards clarity. Possible alternative terms include the “reasonable efforts” or “reasonable alternative solutions” factor or simply “identifying the need.” Finally, a discussion of the third factor in Johnstone would not be complete without a mention of the fourth factor: the interference of a workplace rule “in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation.” 109 This language appears to come from Amselem and reflects the view that no right is absolute.110 There are only two parts to the Amselem test: a sincerely held belief and the requirement that the interference with that belief not be trivial or insubstantial. One criterion balances the other, with the second expressing an objective criterion for need in the context of the prohibited ground of religion. However, in the caregiving context, the third part of the Johnstone test reflects the idea that not every caregiving issue is a need to be accommodated, and, thus, it provides sufficient control on the scope of prima facie family status discrimination. The fourth factor seems redundant. Then why include the fourth factor in the test? The most straightforward answer would be that it is a way to ensure that human rights protection will not be extended to what the court saw as “personal family choices,” with the examples cited being the participation of children in dance classes, sport events, and “similar voluntary activities” including family trips.111 However, the court had been at pains to point out that the “underlying context of each case in which the childcare needs conflict with the work schedule must be examined so as to ascertain whether the interference is more than trivial or insubstantial.”112 On the facts, the court noted that Johnstone’s work schedule interfered with her childcare obligations in a manner that was more than trivial and insubstantial. 113 The court also referred to expert evidence about “unpredictability in work hours being the most difficult factor in accommodating childcare.”114 What are the implications of this part of the analysis for the day-to- day working life of an employee with childcare issues? Does it mean that an employee who needs accommodation for only two shifts (as opposed 109 Johnstone, supra note 1 at para 93. 110 Amselem, supra note 54 at para 61, referred to in Johnstone, supra note 1 at para 85. 111 Johnstone, supra note 1 at paras 69, 72. 112 Ibid at para 97. 113 Ibid at para 106. 114 Ibid at para 107. 108 DISCRIMINATION AND FAMILY STATUS VOL. 14 to ten shifts or on a permanent basis) will not make out a prima facie case despite the fact that she meets the first, second, and third Johnstone factors? What if the two shift changes in question are necessary because the daycare is closed and there is no one else to take care of her child on those days? Would the latter situation qualify as an interference with the childcare obligation in a way that is not trivial or insubstantial or would its time-limited nature lead to the opposite conclusion? Would the answer be different depending on whether the employee is a single parent and has no family in town?115 There are many other possible hypotheticals one could come up with that would raise questions about the application of the terms “trivial or insubstantial.” However, the overall concern is that the first three parts of the test appear to be adequate to assess whether there is a prima facie case of discrimination on the basis of family status. The addition of the fourth factor to the first three parts of the test threatens to take us back to the Campbell River requirement of “serious interference.” 116 This could indeed result in a greater evidentiary burden for complainants alleging family status discrimination in contrast with other grounds. This argument is bolstered by the majority decision in Stewart v Elk Valley Coal Corp., which confirmed that there is no need to add adjectives such as “significant” or “material” to a ground being a “factor” in the adverse treatment: “If a protected ground contributed to the adverse treatment, then it must be material.”117 A need is a need. The last part of the Johnstone test should therefore be abandoned. If this is so, the prima facie case analysis would end with the third factor. If the employee succeeds in proving that they had a need that triggered the accommodation process, the burden would then be shifted to the employer to try to justify its actions or workplace rule. 115 The fourth factor of the test may actually be a disincentive to employees to find partial solutions to their caregiving challenges. The worse their situation is (that is, the fewer alternative solutions that they have identified on their own before approaching the employer), the more likely that they would be able to demonstrate that the interference of the workplace rule with the fulfillment of the childcare obligation is not trivial or insubstantial. 116 Campbell River, supra note 14. 117 Elk Valley, supra note 40 at para 46 (per McLachlin CJ). Interestingly, in a recent decision of the British Columbia Human Rights Tribunal, Adair v Forensic Psychiatric Services Commission (No 2), 2017 BCHRT 147, Member Rilkoff discusses the Campbell River test (still applied in British Columbia) in light of other jurisprudence, including Elk Valley (at paras 119-33). However, the member concludes that “[t]his is not the case to decide whether Campbell River has been overtaken by Moore and Elk Valley” (at para 123). See also the discussion in Suen, supra note 103 at paras 30ff, which raises similar issues, including whether the Moore test should be applied. VOL. 14 JOURNAL OF LAW & EQUALITY 109 V. STEPPING BACK FROM THE HEARING ROOM: FROM TESTS TO THE “ACCOMMODATION CONVERSATION” Tests are useful legal tools when analyzing the strengths and weaknesses of a case both in and outside the hearing room. The prima facie case test provides a framework for the presentation of evidence by the person alleging the violation and for the decision-maker in applying the facts and the law. But these analyses are often used to deal with something after the situation has already led to negative consequences such as hurt feelings, the breakdown of work relationships, the termination of employment, and loss of income. While the debate about whether caregiving alternatives that are available to the employee should be examined as part of the prima facie case or as part of the Meiorin analysis is front-page news for lawyers,118 what truly matters for workplace participants is whether employees can do their job while simultaneously being able to fulfill their caregiving responsibilities. A legal test used in hindsight in the adversarial process often does not reflect the necessary accommodation conversation that should take place not only at the beginning when the employee realizes that he or she has a family status-related need, but also throughout the period of accommodation. To make family-caregiving accommodation work, employers and employees (and unions) have to receive clear guidance on dealing with the issues cooperatively and collaboratively. In Misetich, the fact that the complainant did not provide details to the employer about her eldercare needs at the time she was requesting accommodation was fatal to her prima facie case.119 To avoid situations in which accommodation is refused because an employee did not understand the necessity to provide more information, or felt uncomfortable doing so, all workplace participants should be trained in how to have the “accommodation conversation.” Guidance found outside the case law, such as policies provided by human rights commissions, can inform this process.120 Indeed, human rights commissions have thoroughly tackled 118 Alex Robinson, “Discrimination Decision Muddies Waters,” Law Times (7 November 2016) at 1. 119 The OHRT noted that although Misetich provided evidence at the hearing regarding her eldercare responsibilities, this was after-the-fact evidence and was not provided to the respondent at the time of the events leading to the complaint. Misetich, supra note 4 at paras 63, 64, 68. 120 E.g. CHRC, supra note 2; OHRC, Human Rights at Work (2008) ch 8, online: 110 DISCRIMINATION AND FAMILY STATUS VOL. 14 this issue. The following are important points that can be extracted from their work. A. Employees should expect to have to provide information about their caregiving situation and (efforts to make) arrangements It is not enough for an employee to simply state “I have a family status situation” to trigger the process of accommodation. This puts the ground of family status squarely on a par with other prohibited grounds.121 For example, not every disability-related need of an employee will cause them to seek accommodation. A physical condition may require medication that causes drowsiness, but if an employee can take the medication after their shift ends, they will not need accommodation. On the other hand, if their medication time falls within their shift, they may need a different shift or modified job duties. The same reasoning applies for family caregiving situations. The employee bears the onus to make reasonable attempts within their own sphere of influence, whether with family, friends, or paid caregivers, to find a solution to the caregiving challenge. They will then know whether they have a need that will require accommodation in order for the work to be accomplished. As part of the accommodation conversation, the employee should be “willing to participate in discussions, consider alternatives and agree to reasonable arrangements in the workplace that accommodate his or her needs, even where the arrangement is not his or her preferred solution.”122 121 OHRC, supra note 120, provides an overview of duties and responsibilities of employees (as well as employers and unions) during the accommodation process. Employees are expected to: request accommodation; explain why accommodation is required, so that needs are known; make his or her needs known to the best of his or her ability, preferably in writing; answer questions or provide information about relevant restrictions or limitations, including information from health care professionals, where appropriate and as needed; take part in discussions on possible accommodation solutions; co-operate with any experts whose assistance is required; meet agreed-upon performance and job standards once accommodation is provided; work with the employer on an ongoing basis to manage the accommodation process; and discuss his or her accommodation needs only with persons who need to know. This may include the supervisor, a union representative or human rights staff. 122 CHRC, supra note 2; see also Anne-Marie Slaughter, Unfinished Business: Women, Men, Work, Family (Toronto: Random House Canada, 2015), ch 10. VOL. 14 JOURNAL OF LAW & EQUALITY 111 B. Employers should build flexible work arrangements into the workplace if at all possible Flexible work arrangements such as different or shifting hours of work, compressed schedules, and telework can address caregiving needs and reduce the need for employees to seek accommodation. 123 Such arrangements “have been shown to reduce absenteeism, foster employee loyalty, improve morale and retention, and increase productivity.” 124 Employers and employees should also be aware that the accommodation arrangements may change as the family situation changes, and they may also end when it is no longer needed. C. Managers must not jump to conclusions about what is important for a child or other family member One of the inherent problems when dealing with family caregiving situations is that what is acceptable or expected in one family may not be in another. Traditions, expectations, cultural and geographic backgrounds, health needs, and personalities all impact on how people view family situations and obligations. It is easy for managers to react in knee-jerk fashion based on their own experiences and expectations or because of biases they may not even know they have. It is important to give a thoughtful and considered response when an employee seeks accommodation, whatever the ground of discrimination. As David Lepofsky argues, [a]n open-minded and creative deliberative process significantly increases the prospects for finding a feasible accommodation to the needs of a disabled employee, or other worker with needs whose accommodation is endorsed under human rights legislation. … The wider the 123 Other flexible work arrangements include extended maternity or parental leave, compassionate or other leave to care for sick family members, leave to provide childcare or eldercare in unanticipated or emergency situations, shift changes, job sharing, part‐ time work with pro‐rated benefits, and shifting or sharing work duties or tasks. Indeed, recent federal legislative changes include the right to request certain flexible work arrangements: Bill C-63, A second Act to implement certain provisions of the budget tabled in Parliament on March 22, 2017 and other measures, 1st Sess, 42nd Parl, 2017 s 199 (Royal Assent, 14 December 2017), SC 2017, c 33, inserting s 177.1(1)-(9) into the Canada Labour Code, RSC 1985, c L-2. These provisions will come into force on a day to be fixed by the Governor in Council. See also Sara MacNaull, Flex: From a Privilege to a Right (Ottawa: Vanier Institute of the Family, 2016). 124 CHRC, supra note 2. 112 DISCRIMINATION AND FAMILY STATUS VOL. 14 range of discussions and inquiry, the greater the chance that a workable accommodation will be discovered. As well, such deliberations can produce a more thoughtful and critical reflection on alleged adverse consequences which initially were feared if the worker were to be accommodated. Such deliberations and inquiries do not just make sense from the perspective of effective enforcement of anti-discrimination statutes. They also make good business sense.125 D. Managers need guidance, which should be shared with employees, on what they can ask for during the accommodation conversation Often employers do not know how far they can go in seeking information from the employee, and employees may feel that an employer is asking for too much, or the wrong kind of, information. When does the conversation cross the line from legitimate collaborative attempts to find meaningful accommodation to unwarranted intrusion into an employee’s personal life? In the hiring context, employers have been told to not ask questions about family, about employees’ plans to have children, and about a person’s marital status. It is not surprising that they are reluctant to engage in a search for more details about a person’s family situation and caregiving arrangements when the accommodation conversation arises. However, some questions are appropriate on condition that the employer respect the employee’s privacy and ask only those questions that are relevant to, and necessary for, the accommodation situation.126 Practical questions to ask in assessing a request for accommodation include: what is the relationship of the employee to the person receiving care; what are the specifics of the care that the recipient needs (for example, what is needed, why, how often, when); how long will the person need care (for example, short term, long term, indefinite); why should the employee be the one to provide the care required; why is providing the care an obligation and not just a personal choice; what are the available realistic alternatives (for example, friends and family, daycare, home care, community supports); what efforts have been made to reconcile work and caregiving obligations; 125 David Lepofsky, “The Duty to Accommodate: A Purposive Approach” (1992) 1:1 Canadian Labour LJ 1 at 14. 126 CHRC, supra note 2 at 6. VOL. 14 JOURNAL OF LAW & EQUALITY 113 why were these efforts unsuccessful; and what accommodation is needed from the employer?127 As in any meaningful conversation, it is important to approach it in good faith (unless there are legitimate reasons to have concerns about the truthfulness of the request) in a sincere attempt to find a solution.128 The employer has the duty to offer reasonable and dignified solutions to accommodate the employee, up to the point of undue hardship; remove discriminatory barriers that may limit an employee’s ability to do his or her job; and remain open to adjusting a previous agreement if circumstances change.129 E. Employees and employers must be aware that collective agreement provisions do not provide an excuse for refusing to accommodate Case law has stated that human rights legislation is paramount to other legislation and is read into all collective agreements.130 Accommodation to the point of undue hardship is an integral part of extending the principles of human rights and non-discrimination to employees. Provisions of a collective agreement cannot serve as an impediment to the search for appropriate accommodation. The employer is in a better position to formulate accommodations, but the union “shares a joint responsibility with the employer to seek to accommodate the employee.”131 F. A workplace that reconciles caregiving and work obligations makes for a happier and more productive environment Some of the most important reasons employers have given for providing flexibility and work-life initiatives were to keep valuable employees, to promote employees’ health and wellness and/or quality of life, to increase employee engagement and morale, and to fulfill their belief that it is the right thing to do.132 However, other reasons have included complying with 127 CHRC, supra note 2 at 6; see also suggestions for better communication processes between the employer and employees when intersecting grounds of discrimination are involved in an accommodation situation. Mr X v Canadian Pacific Railway, 2018 CHRT 11 at paras 304-20 (per Member Luftig). 128 OHRC, supra note 120, ch 8; CHRC, supra note 2 at 5-6. 129 CHRC, supra note 2 at 5. 130 Parry Sound (District) Social Services Administration Board v Ontario Public Service Employees Union, Local 324 (OPSEU), [2003] SCJ No 42 (per Iacobucci J). 131 Renaud, supra note 92 at para 39. 132 Donna S Lero et al, The Availability, Accessibility and Effectiveness of Workplace Supports for Canadian Caregivers, Final Report (31 December 2012) at 78, Table 12, online: 114 DISCRIMINATION AND FAMILY STATUS VOL. 14 legislative requirements, demonstrating corporate social responsibility and maintaining a corporate reputation, remaining competitive in the marketplace, attracting potential employees due to skills shortages, and expanding the workforce. It appears that a workplace that promotes flexibility and meets caregiving needs is good for both employees and employers.133 An open-minded, deliberate, and creative accommodation process “make[s] good business sense.”134 VI. CONCLUSION Although there is still some confusion about the test for a prima facie case of family status discrimination, those of us who work in this area can at least take comfort in the fact that we are no longer arguing over whether childcare or eldercare responsibilities fall within the ground of family status. And, as we strive towards a better understanding of the criteria for a prima facie case, it is good that decision-makers across jurisdictions are discussing and debating the issues and seeking to recognize the day-to-day family and work obligations of employees as well as the necessity for cooperation and communication in the accommodation process. In Johnstone, the Federal Court of Appeal proposed a principled test, building on previous case law, that balances the accommodation of employees’ needs with their responsibilities to balance their caregiving and work obligations. Not every caregiving situation is a need that must be accommodated under human rights legislation. Although the Johnstone test may have one criterion too many, the court affirmed the flexible nature of the prima facie case test. The door is open for other decision-makers to adapt the test depending on the context of the case and, as always, in response to jurisprudence of the Supreme Court of Canada. Tests and evidentiary frameworks aside, and taking into account that the interaction of family caregiving with workplace rules and obligations is commonplace, the goal should be to find ways to simplify and streamline the accommodation process. Informed participants will help avoid an escalation of matters that could lead from the workplace to the hearing room. Collaboration and a respectful “accommodation conversation” should be encouraged for everyone involved: employers who offer accommodation, unions who facilitate it, and employees who need it to “make the lives they are able and wish to have.”135 Work-and-Care Initiatives: Flaws in the Australian Regulatory Framework Anna Chapman ABSTRACT The Australian labour law system was founded at the turn of the twentieth century upon a set of gendered breadwinner assumptions regarding work and care. Those gendered assumptions were formally displaced in Australia from the 1970s onwards, with a raft of legal entitlements developed over the subsequent forty or so years. Yet it is clear that many workplaces in Australia do not accommodate, and, indeed, are even hostile to, pregnant women, mothers, and other workers with substantial care responsibilities. This article reveals four themes of the Australian regulatory framework that together explain the inadequacies of the current work-and-care schemes in Australia. I. INTRODUCTION The Australian labour law system was founded at the turn of the twentieth century upon a work-and-care dynamic that constructed the activities of work and care as existing in wholly separate and gendered spheres of life. Work was an activity of male breadwinner husbands, while care was the sole domain of the workers’ wives, who were housewives not engaged in the labour market.1 Those gendered breadwinner assumptions of law were formally displaced in Australia from the 1970s onwards, with a raft of legal entitlements developed over the subsequent forty or so years. These included maternity leave and then non-gender specific parental leave, discrimination protections on grounds including sex, pregnancy, and family or care responsibilities, and the right to request an alteration in working arrangements in order to accommodate care responsibilities. Centre for Employment and Labour Relations Law in the Melbourne Law School at the University of Melbourne, Australia. The author thanks the referees at the Journal of Law & Equality for their helpful comments on the article. 1 See e.g. Ex Parte HV McKay (1907), 2 CAR 1; Anna Chapman, “Work/Family, Australian Labour Law, and the Normative Worker” in Joanne Conaghan & Kerry Rittich, eds, Labour Law, Work, and Family: Critical and Comparative Perspectives (Oxford: Oxford University Press, 2005) 79 at 82-5. 116 WORK-AND-CARE INITIATIVES VOL. 14 More recently, from the early 2000s onwards, the heterosexed character of the legal entitlements has been challenged through the legal recognition of same-sex relationships. Yet it is clear that many workplaces in Australia do not accommodate, and, indeed, are even hostile to, pregnant women, mothers, and other workers with substantial care responsibilities. A national review conducted by the Australian Human Rights Commission over 2013 and 2014 found that discrimination related to pregnancy, parental leave, and returning to work following parental leave was “pervasive” in Australian workplaces. The review notes that one in two mothers (49 percent) reported being treated unfairly or being disadvantaged in their workplace at some point.2 Nearly a fifth (18 percent) reported job loss “during pregnancy, when they requested or took parental leave or when they returned to work.”3 Men also experience discrimination, with over a quarter (27 percent) of fathers (and partners of mothers who recently have given birth) reporting discrimination when requesting or taking parental leave or when they returned to work.4 The reasons underlying the ineffectiveness of the Australian regulatory framework regarding work and care are various and interrelated. Four themes emerge from this framework, which together explain the inadequacies of the work-and-care schemes. First, in their coverage, the various schemes favour full-time, longer-term continuous employment, which leaves out many women, and especially mothers, who are more likely to hold part-time and casual jobs. Second, the judicial interpretation of key legislative concepts has further narrowed the application of the schemes. Third, enforcement procedures are weak and sometimes non-existent. Finally, the failure of the legal framework to recognize and respond to the full diversity of families places some workers and their families outside of the protection of the law. Together, these four themes exemplify the shortcomings in the Australian attempt to substantively dislodge the breadwinner-homemaker framework. The structure of this article is as follows. The main anti-discrimination law and labour law initiatives developed in Australia since the 1970s are outlined to provide the necessary background, and, following that, the four themes suggested above are drawn out. 2 Australian Human Rights Commission (AHRC), Supporting Working Parents: Pregnancy and Return to Work, National Review: Report (Sydney: Australian Human Rights Commission, 2014) at 8 [AHRC, Supporting Working Parents]. The meaning of “mother” in these data is explained, but it does not appear to include lesbian co-parents (at 24). 3 Ibid at 27. 4 Ibid at 48-9. The employees surveyed were those who claimed the Dad and Partner Payment (DAPP), discussed below. VOL. 14 JOURNAL OF LAW & EQUALITY 117 II. LAW REFORM: 1970 TO THE PRESENT For the first half of the twentieth century, the Australian labour law system consciously and explicitly discriminated against women workers. For example, until 1966, the federal public sector deemed women to have “retired” upon marriage.5 Moreover, until the early 1970s, women workers were legally entitled to only a proportion of the male wage rate—which was initially 54 percent from 1912 onwards, then 75 percent from 1950 onwards—on the assumption that women workers financially supported themselves alone, while male workers financially supported a wife and children.6 These two sets of rules, which excluded married women from employment in the public sector and set wages based on gender, starkly illustrate the explicitly discriminatory basis of Australian labour law in the early twentieth century. 7 In the modern era, law reform projects have focused on leave regimes to allow time off work for caregiving, redress for discrimination, and a “right-to-request” mechanism that allows workers to request a change to work arrangements to accommodate care responsibilities. These are outlined in turn. A. Leave The Australian labour law system recognizes two forms of leave regarding care responsibilities: leave following the birth or adoption of a child and, more recently, leave in relation to other caring responsibilities, such as the care of children in other contexts and the care of partners, frail or elderly parents, or other relatives. This latter leave is now known as personal/carer’s leave. 5 Commonwealth Public Service Act 1922 (Cth), s 49, repealed by Public Service Act 1966 (No 2) (Cth), s 4. 6 Rural Workers’ Union and United Labourers’ Union v Mildura Branch of the Australian Dried Fruits Association and Others (1912), 6 CAR 61 at 71; Federated Clothing Trades v JA Archer (1919), 13 CAR 647 at 691; Basic Wage Inquiry 1949-50 (1950), 68 CAR 698; National Wage Case 1974 (1974), 157 CAR 293. 7 In 1994, a mechanism was enacted to enable wage differentials in which gender was a factor to be challenged. The current provisions are found in the Fair Work Act 2009 (Cth), Parts 2- 7 [FW Act]. In this article, the FW Act is referred to as the labour law statute. Of course, this does not mean that equal pay for women workers has been won, as ongoing legal claims for equal pay attest. See e.g. the test case brought by several trade unions in relation to childcare workers and early childhood educators that is currently before the Fair Work Commission. See “Equal Remuneration Case 2013-14,” online: 118 WORK-AND-CARE INITIATIVES VOL. 14 Leave Following Birth or Adoption: Parental Leave In the 1970s, feminist groups successfully pushed for establishing maternity leave schemes. A scheme commenced initially in the federal public sector, and then the trade union movement pursued a test case in the private sector.8 In the private sector, women who gave birth were legally entitled to take up to fifty-two weeks of unpaid absence from work and then return to their former position or, where that no longer existed, an equivalent position.9 In 1985, the leave was expanded to adoption, and, in 1990, maternity leave became parental leave when the right to be absent from work was extended to spouses and male de facto spouses. 10 In 2005, a right to request an extension of this unpaid leave for a further fifty-two weeks was added, for a maximum leave of two years. An employer was only entitled to reject the request for an extension on “reasonable” grounds.11 In 2009, unpaid parental leave was extended to same-sex couples.12 The basic entitlements of unpaid parental leave in the private sector remain in place today—a right to take an unpaid absence from work following birth or adoption of up to fifty-two weeks, with a right to request an extension for an additional period of up to fifty-two weeks and a right to return to the pre-parental leave position or, where that position no longer exists, “an available position for which the employee is qualified and suited nearest in status and pay to the pre-parental leave position.”13 The leave can be shared between an employee couple, with a maximum of eight weeks to be taken at the same time by the members of the couple.14 Prior to 2013, the maximum concurrent leave was three weeks.15 The minimum private sector entitlements relate to unpaid leave only. Although some collective agreements (and, less likely, industrial awards and 8 In the federal public sector, twelve weeks of paid leave was provided, followed by a further forty weeks of unpaid leave. Maternity Leave (Commonwealth Employees) Act 1973 (Cth). This remains the standard of paid leave in the federal public sector. The standard for paid leave in state public sectors is now fourteen weeks. See e.g. Victorian Public Service Graduate Recruitment and Development Scheme, Victorian Public Service Agreement 2006 (2006), s 1, part 6, clause 46.8.2, online: VOL. 14 JOURNAL OF LAW & EQUALITY 119 organizational policies) contain rights to paid leave relating to birth or adoption, the spread of paid leave schemes through these mechanisms has been slow and is highly uneven. In 2010, less than half of working mothers across Australia could access paid parental leave, and large groups of women, especially casual workers and those in small and medium private sector businesses, were far less likely to have any coverage by a paid scheme.16 Where it exists, the most common provision in collective agreements for paid parental leave for the main carer was for fourteen weeks.17 Provisions in collective agreements for paid leave for secondary carers are very poor, with one week being the most common duration in 2009.18 Given these uneven and paltry provisions for paid parental leave, the federal Labor government bowed to pressure in 2010 and enacted a new statute establishing a modest payment scheme for workers on leave to care for babies and adopted children.19 The scheme provides a government- funded payment for employees and other workers who are the primary carers of a baby or adopted child.20 Up to eighteen weeks of payment is available, at the rate of the weekly national minimum wage. 21 This 16 Bill Martin et al, PPL Evaluation: Final Report (Brisbane: Institute for Social Science Research, University of Queensland, 2014) at 2. It is unclear whether the concept of “working mothers” used in the report covers lesbian co-parents. 17 Note that eleven collective agreements—all in the higher education sector—provided for twenty-six weeks of paid leave for mothers (during 2009). Marian Baird et al, “Paid Maternity and Paternity Leave and the Emergence of ‘Equality Bargaining’ in Australia: An Analysis of Enterprise Agreements, 2003-2007” (2009) 35:4 Australian Bulletin of Labour 671 at 682. The article uses the categories of “maternity leave” and “paternity leave,” which are still in common use in collective agreements. It is not possible from the article to ascertain the precise coverage of the two types of paid leave, including specifically the coverage of same-sex relationships. 18 Ibid. 19 Paid Parental Leave Act 2010 (Cth) [PPL Act]. Despite the title of the Act, it does not give a right of absence as such. A worker must source their right to be absent from work to another legal right, most typically the right of unpaid parental leave in the FW Act. 20 The scheme envisages that, in most cases, employers, rather than the government, will administer the payment to employees as part of normal payroll procedures. This administrative role has been strongly resisted by employers. Notably, the Fairer Paid Parental Leave Bill 2016 (discussed further below) removes employers from this administrative role, unless they choose to opt in. 21 PPL Act, supra note 19, Parts 2-3. To be eligible for a payment under the government scheme, the claimant’s individual adjusted taxable income must be AUS $150,000 per annum or less, and that person must have worked an average of around one day per week for at least ten of the thirteen months leading up to birth or adoption. Parental leave pay can be accessed anytime from the date of birth until the baby's first birthday, but it needs to be taken in one continuous block. The current national minimum weekly wage in Australia for employees is AUS $694.90 (1 July 2017 to 30 June 2018). For women who worked only a day or so a week in a low paid position, the weekly parental leave payment 120 WORK-AND-CARE INITIATIVES VOL. 14 government-funded scheme is additional to any employer-provided arrangement, and workers may access both, at the same time or, more usually, in sequential periods. In 2012, the Labor government extended the scheme to provide an additional payment, specifically for fathers and partners of the birth mother, comprising up to two weeks at the weekly minimum wage.22 This Dad and Partner Payment (DAPP) cannot be taken while the father or other partner is receiving any form of paid leave.23 Workers can take DAPP at the same time as another person receives parental leave payment under the 2010 government scheme or paid parental leave under an employer-provided arrangement or is otherwise the main carer of the baby or adopted child.24 Personal/Carer’s Leave A leave entitlement for carers outside the circumstances of birth or adoption was first recognized through a series of test cases pursued by trade unions in the mid-1990s.25 The basic entitlement continues today, although now it is known as personal/carer’s leave. The legislation provides employees with ten days of paid leave per year of service, where this amount accumulates over the course of the year and from year to year. The leave may be taken where the worker is not fit for work because of their own illness or injury or for the purpose of providing care or support to a member of their “immediate family” or household who is ill, injured, or faces an unexpected emergency.26 is above a replacement wage. See further Erin McCarthy, Elise Jenkin & Andrew Stewart, Parental Leave: A User-Friendly Guide (Pyrmont: Thomson Reuters, 2012). 22 Similar work and income tests exist. See note 21 above and accompanying text. 23 Though DAPP may follow sequentially a period of paid leave. 24 In 2016, the government introduced the Fairer Paid Parental Leave Bill 2016, which, if enacted, would have reduced access both to DAPP and to the 2010 government scheme. The bill provided, among other things, that where workers have employer-provided paid parental leave that is more favourable to them than the modest 2010 government scheme, they would not be entitled to any payment under the 2010 scheme. The government said that the bill would end the current practice of “double-dipping” by employees. The government, however, was not able to gain support for the passage of the bill and withdrew it in May 2017. “Coalition Abandons Legislation to Outlaw ‘Double Dipping’,” Workplace Express (18 May 2017), online: VOL. 14 JOURNAL OF LAW & EQUALITY 121 B. Discrimination Laws From the 1970s onwards, anti-discrimination legislation was enacted at both state and then federal levels. This legislation provides a right to seek redress in relation to discrimination on a range of grounds including sex, pregnancy, breastfeeding, responsibilities to care for others, and sexuality or sexual orientation. 27 Most statutes characterize direct discrimination as treating the claimant “less favourably” than the employer treats, or would treat, a man or a person who is not pregnant or does not have care responsibilities in circumstances that are the same or are not materially different. They characterize indirect discrimination in terms of the existence of a practice or requirement that disadvantages a group identified with a protected attribute, where the practice or requirement is not reasonable in the circumstances.28 Intention, or a discriminatory motive on the part of the employer, is not required for either direct or indirect discrimination.29 Some state anti-discrimination statutes move beyond the concepts of direct and indirect discrimination to recognize a third type of discrimination claim—namely, failing to reasonably accommodate on the ground of care responsibilities. 30 Moreover, the Victorian anti- discrimination statute imposes an additional positive duty on both public and private sector employers by requiring employers who have a duty not to engage in discrimination, sexual harassment, or victimization to “take reasonable and proportionate measures to eliminate that discrimination, sexual harassment or victimization as far as possible.”31 27 See e.g. Anti-Discrimination Act 1977 (NSW); Equal Opportunity Act 2010 (Vic) (which dates back to a 1977 Act) [Vic EOA]; Equal Opportunity Act 1984 (SA) (which dates back to a 1975 Act); Sex Discrimination Act 1984 (Cth) [SDA]. 28 See eg, SDA, supra note 27, ss 5(1) (direct discrimination), 5(2), 7B (indirect discrimination). Some statutes have attempted to move away from a comparator approach of less favourable treatment in direct discrimination by using the concept of “unfavourably.” See e.g. Vic EOA, supra note 27, s 8(1). Direct and indirect discrimination have been interpreted to be mutually exclusive. Waters v Public Transport Corporation (1991), 173 CLR 349 at 393; Bropho v Western Australia, [2007] FCA 519 at para 289. There is no general provision shifting the burden of proof to respondents, although a shifted burden of proof arises in some schemes in relation to establishing reasonableness under indirect discrimination. See e.g. SDA, supra note 27, s 7C. Discrimination legislation also prohibits sexual harassment, victimization, and some other forms of harassment and vilification as well. 29 See e.g. Vic EOA, supra note 27, s 10. 30 Ibid, ss 17, 19, 22, 32; Anti-Discrimination Act 1992 (NT), ss 24, 58. In relation to New South Wales, see Tleyji v TravelSpirit Group Pty Ltd, [2005] NSWADT 294 at para 105 [Tleyji]; Reddy v International Cargo Express, [2004] NSWADT 218 at para 84. Reasonable accommodation in relation to disability is also legally required. See e.g. Disability Discrimination Act 1992 (Cth), s 5. 31 Vic EOA, supra note 27, s 15. 122 WORK-AND-CARE INITIATIVES VOL. 14 C. Adverse Action Prohibitions In 2009, prohibitions against “adverse action” were added to the labour law statute. These provide redress to workers who are treated adversely by their employer, including in a discriminatory manner, based on attributes including sex, family or carer’s responsibilities, pregnancy, and sexual orientation.32 These labour law protections overlap with, and sit alongside, the existing anti-discrimination law framework discussed under the previous subheading, and a claimant may bring a claim under either an anti-discrimination statute or the labour law scheme (but not both).33 In addition to providing protection against discriminatory conduct, the labour law statute also provides redress for workers who are treated detrimentally because they have exercised their workplace right to, for example, parental leave or personal/carer’s leave or because they have inquired into their employment entitlements with their employer or with the labour inspectorate or have requested a change in their work arrangements in order to accommodate care responsibilities.34 D. The Right-to-Request Scheme In addition to protection against “adverse action,” a right-to-request scheme was enacted into the labour law statute in 2009.35 This mechanism enables employees to request a change in their working arrangements to accommodate various responsibilities and circumstances.36 Initially, these responsibilities were limited to the care of preschool-aged children and children (under the age of eighteen) with a disability. In 2013, the provisions were extended to apply to the care of children and other family members as well as, potentially, a broad range of other people, in addition to requesting a change in working arrangements by an employee aged fifty-five years and over and for the purpose of dealing with family violence.37 The concept of working arrangements has wide meaning and includes altering the number and spread of working hours, the days of work, and altering the work 32 FW Act, supra note 7, ss 342(1), 351. 33 The statutory provisions dealing with choice of jurisdiction are complex. See e.g. FW Act, supra note 7, ss 721-3; SDA, supra note 27, ss 10(3), 11(3); see further Neil Rees et al, Australian Anti-Discrimination Law, 2nd ed (Sydney: Federation Press, 2014) at 12.12. 34 FW Act, supra note 7, s 340. 35 The antecedent of this statutory scheme is found in a 2005 test case. Parental Leave Test Case (2005), 143 IR 245. 36 FW Act, supra note 7, s 65. 37 FWAA, supra note 15, s 17. VOL. 14 JOURNAL OF LAW & EQUALITY 123 location. An employer is only entitled to reject a request to alter working arrangements on “reasonable business grounds.”38 E. Gender Equality Reporting Since 1986, both universities and larger private sector employers have been required to disclose to an agency certain information related to gender equality.39 The current federal act, the 2012 Workplace Gender Equality Act requires that private sector employers with 100 or more workers and universities report annually to an agency on how the organization is performing against a set of “gender equality indicators.”40 These indicators include the gender composition of the organization’s workforce (including its governing body); the extent to which men and women receive equal remuneration; the availability and utility of measures, including flexible work arrangements, which are designed to support workers with care responsibilities; and consultation with employees about gender equality in the organization.41 The public reports from organizations are published on the agency’s website.42 Organizations with 500 or more workers must additionally have policies or strategies in place to support improvements in at least one of these equality indicators.43 III. INADEQUACIES WITH AUSTRALIAN LEGAL REGULATION The different initiatives discussed above are all beset with various inadequacies. These exist both in the substantive rules and procedural requirements. They arise due to the language of legislative provisions and their interpretation by courts and tribunals. This section draws out four key failings, discussing each in turn. First, there are strict eligibility rules and employer exemptions, which narrow the coverage. Second, narrow 38 FW Act, supra note 7, s 65(5); see also s 5A for a partial articulation of the meaning of “reasonable business grounds.” 39 The first Act was the Affirmative Action (Equal Employment Opportunity for Women) Act 1986 (Cth). 40 The Workplace Gender Equality Agency has a range of functions, including to advise and assist employers (of all sizes) to promote gender equality, to develop benchmarks and to issue guidelines, and to undertake research on gender equality. Workplace Gender Equality Act 2012 (Cth), s 10 [WGEA]. 41 Ibid, s 3. 42 Provision is made for the non-publication of personal information, including information relating to remuneration. Ibid, ss 13, 14, 14A. 43 Ibid, s 19; Workplace Gender Equality (Minimum Standards) Instrument 2014 (Cth). Similar requirements to develop equality programs exist in the federal and state public sectors, although they extend beyond gender to race, ethnicity, and disability. See e.g, Public Service Act 1999 (Cth), s 18; Government Sector Employment Act 2013 (NSW), s 63. 124 WORK-AND-CARE INITIATIVES VOL. 14 judicial interpretations constrict the statutory rights still further. Third, there are procedural constraints on claims and limited enforcement of successful claims. Fourth, the law demonstrates insufficient sensitivity to intersectionality and non-heterosexual relationships. These themes suggest that the system’s inadequacies disadvantage women workers and workers with care responsibilities more generally. A. Substantive Reach The reach of the Australian work-and-care legal initiatives is deficient due to strict eligibility rules regarding the types of work arrangements and issues covered. Regarding eligible work arrangements, several of the legal mechanisms discussed above assume a worker who is employed on a full- time and longer-term continuing basis. This assumption reveals the legacy of the breadwinner worker. It ignores the growth in Australia of part-time, casual, and contract engagement and the feminization of these non- standard work arrangements. Both unpaid parental leave and the right-to- request mechanism can only be used by workers who are employees at common law and have completed twelve months of continuous service with their employer before taking parental leave or requesting to alter their working arrangements.44 Casual employees who have been with their employer for more than twelve months are only covered by both sets of rights where they have worked during that time on a “regular and systematic basis” and have “a reasonable expectation of continuing employment by the employer on a regular and systematic basis.”45 In relation to personal/carer’s leave, all casual employees are disqualified from eligibility.46 These rules mean that many women workers are ineligible for unpaid parental leave, the right-to- request mechanism, and personal/carer’s leave. 47 In Australia, casual 44 FW Act, supra note 7, ss 67, 65(5). On the meaning of “continuous service,” see ibid, s 22. Unpaid parental leave is not recognized as “service” for this purpose. 45 Ibid, ss 12 (definition of “long-term casual employee”), 65(2)(b), 67(2). 46 Ibid, s 95. Independent contractors are also excluded by these entitlements. Neither casual workers nor independent contractors are entitled to paid annual leave. 47 It is thought that around 9 percent of the workforce are independent contractors rather than employees, and casual employees account for around 20 percent of all employees in Australia. Productivity Commission, Workplace Relations Framework: The Inquiry in Context, Issues Paper No 1 (Canberra: Productivity Commission, 2015) 9. On casualization and gender, see Katy Richmond, “The Workforce Participation of Married Women in Australia” in Donald E Edgar, ed, Social Change in Australia: Readings in Sociology (Melbourne: Cheshire, 1974) 269, Table 1; Rosemary Hunter, “The Legal Production of Precarious Work” in Judy Fudge & Rosemary J Owens, eds, Precarious Work, Women, and the New Economy: The Challenge to Legal Norms (Portland, OR: Hart Publishing, 2006) 283. VOL. 14 JOURNAL OF LAW & EQUALITY 125 employees receive a 25 percent wage loading (or premium) to recognize the leave entitlements they forgo. 48 Nonetheless, it is questionable whether these key work-and-care initiatives should be traded off in the way they currently are in return for a higher hourly or weekly wage rate. While such a trade-off might find favour with workers without care responsibilities, it is unlikely to be favourable among casual workers with care responsibilities. There is a further key way in which the reach of the Australian work- and-care initiatives is curtailed. The anti-discrimination statutes and labour law statute contain exemptions that substantively reduce the protections offered. The language of the anti-discrimination statutes suggests that a discrimination claim cannot be used to challenge employer conduct that complies with, or is authorized by, another law (such as the health and safety law and the labour law).49 This hierarchy of legislation means that claimants have not been able to use anti-discrimination law to challenge the products of the labour law system, such as redundancy provisions and allowances provided under industrial awards, provisions for leave, and consultation provisions contained in collective agreements. Although the content of labour law instruments ought now to be non-discriminatory,50 there is reason to suspect that discriminatory clauses may continue to slip through tribunal vetting processes.51 Such matters cannot be challenged under anti-discrimination law. A second type of key exception in both anti-discrimination statutes and the labour law system relates to religious organizations, such as religious schools and hospitals and religious institutions providing services such as emergency housing and drug and alcohol counselling.52 With the contraction of the state under neo-liberalism, religious bodies provide an increasing share of services previously offered by the state, and they engage a growing percentage of the workforce. These religious exceptions exonerate from liability people and institutions where the behaviour that is challenged is based on the genuine religious beliefs of 48 Annual Wage Review 2015-2016, [2016] FWCFB 3500 at para 614. 49 See e.g. SDA, supra note 27, s 40; Vic EOA, supra note 27, s 75. 50 FW Act, supra note 7, ss 153, 194(a), 195. It is unclear though whether these provisions prohibit indirect as well as direct discrimination. See Shop, Distributive and Allied Employees Association v National Retail Association (No 2), [2012] FCA 480 at paras 54-7 [DAEA]. 51 The complexity involved is evident in, e.g., University of Melbourne, [2014] FWCA 1133; DAEA, supra note 50 at paras 54-8. 52 See e.g. SDA, supra note 27, ss 37, 38; Vic EOA, supra, note 27, ss 81-4; FW Act, supra note 7, ss 153(2), 195(2)(b), 351(2)(c). The Vic EOA, supra note 27, s 84, contains a broader exception in relation to a person’s genuine religious belief, which arises in any work (or other) context. 126 WORK-AND-CARE INITIATIVES VOL. 14 the discriminator. They operate to reduce the reach of the legislation in religious contexts and, most likely, additionally discourage claimants from pursuing claims. For example, in relation to work-and-care issues, there are anecdotal accounts of Catholic schools dismissing unmarried women teachers who are pregnant.53 While the exclusion from liability of conduct that accords with other laws and the conduct of religious bodies is conscious and chosen by Parliament, the language of the personal/carer’s leave provisions in the labour law statute appears unintentionally narrow. Personal/carer’s leave is available where “the employee is not fit for work because of a personal illness, or personal injury, affecting the employee,” a formula that originates in award provisions for sick leave at least from the 1940s.54 It is unclear whether this language, which remains today in the labour law statute, authorizes an absence from work to attend prenatal appointments or reproductive health appointments such as in vitro fertilization treatment.55 For other issues, such as breaks at work for the purposes of breastfeeding or expressing, it is clear that no relevant minimum legal entitlement exists. 56 Clauses on these matters might appear in some collective agreements, although no research indicates their prevalence, but it is clear there is no national minimum legal standard in relation to them. B. Judicial Interpretations of Substantive Rules In addition to narrow legislative drafting, a significant shortcoming in the Australian work-and-care landscape is the conservative and narrow interpretations, against the interests of claimants, given to the legislation in key decisions. Although Australia does not have a national bill of rights, judges and adjudicators are nonetheless directed to interpret legislation in a way that best achieves the purpose or object of the statute under consideration.57 The case law on anti-discrimination law and “adverse action” prohibitions is marked by senior courts narrowly interpreting key concepts in the statute in question.58 Although the objects of a scheme may 53 See e.g. Melissa Fyfe, “Teacher Scorned for ‘Chosen Lifestyle’,” The Age (4 October 2009). 54 See e.g. Australasian Meat Industry Employees Union v Metropolitan and Export Abattoirs Board (1943), 51 CAR 677 at 685. 55 AHRC, Supporting Working Parents, supra note 2 at 124. 56 Ibid. 57 Acts Interpretation Act 1901 (Cth), s 15AA [AIA]. Some states though have state equivalences of bills of rights that shape the interpretation of that state’s legislation. See e.g. Charter of Human Rights and Responsibilities Act 2006 (Vic), s 32. 58 Beth Gaze, “Context and Interpretation in Anti-Discrimination Law” (2002) 26 Melbourne UL Rev 325; Anna Chapman, “Judicial Method and the Interpretation of Industrial Discrimination” (2015) 28 Austl J Lab L 1. VOL. 14 JOURNAL OF LAW & EQUALITY 127 be open to debate, it is nonetheless difficult to defend dominant judicial approaches as furthering the purposes of anti-discrimination law or the “adverse action” provisions in the labour law statute. Three decisions serve to illustrate court and tribunal conservatism. These decisions narrow the substantive protections afforded to workers by the relevant statute, and they likely have a strong chilling effect on potential claims. The first decision concerns the meaning of direct discrimination in anti-discrimination statutes. As noted earlier in this article, most anti-discrimination statutes formulate the test of direct discrimination as involving an employer who treats the claimant “less favourably” than an employee without that attribute in circumstances that are the same or are not materially different. In Hickie v Hunt & Hunt, the claimant was a female partner in a law firm who returned from five months of parental leave on an agreed part-time basis to find that she had virtually no files or ongoing work.59 She claimed that the law firm’s failure to maintain her practice amounted to direct discrimination on the ground of sex under the federal 1984 Sex Discrimination Act. Marea Hickie was unsuccessful in this claim because the tribunal considered that a hypothetical male partner who took extended leave of around five months and then returned to work on a part-time basis would not have been treated any better by the law firm than the claimant was. On this reasoning, Hickie had not been treated less favourably than this hypothetical comparator. In 2003, Australia’s highest court approved a similar methodology regarding direct discrimination, albeit in the context of disability and education. Purvis v New South Wales involved a school student, Daniel, with an acquired brain injury who had been excluded from school because of his violent and anti-social behaviour. 60 This behaviour was a manifestation of his disability. The court held that there was no contravention of anti-discrimination law regarding direct discrimination on the ground of disability because another student who did not have a disability, but who behaved in the same violent manner as Daniel had, would also have been excluded from the school. For that reason, Daniel had not been treated “less favourably” than a comparator who was in the same (or similar) circumstances as himself.61 59 Hickie v Hunt & Hunt, [1998] HREOCA 8. The claimant, however, did succeed on a claim of indirect sex discrimination in relation to the failure to maintain her practice and other matters. 60 Purvis v New South Wales (2003), 217 CLR 92 [Purvis]. 61 Note that at the time when Purvis was decided, the Disability Discrimination Act 1992 (Cth), under which it was litigated, contained neither an “unjustifiable hardship” exception of relevance to Daniel’s situation nor a characteristic extension provision. 128 WORK-AND-CARE INITIATIVES VOL. 14 The tribunal’s approach in Hickie, and most authoritatively in Purvis, to understanding direct discrimination in terms of a comparator with the same behaviour and circumstances as the claimant, although without the specific attribute itself, renders irrelevant the real-life connection between the claimant’s situation and the protected attribute. The reason why Hickie took five months’ leave and returned to work part-time rather than full- time was because she was a woman who had given birth and was now the carer of a baby. Similarly, Daniel was not merely a difficult teenager; his anti-social and violent behaviour was a manifestation of his disability. The Hickie and Purvis approach to drawing the comparator has been replicated throughout anti-discrimination law. 62 It can lead to highly artificial hypothesizing that lacks credibility and works against the interests of claimants, who have the burden of proof in establishing their claim of discrimination. It is hard to imagine a credible male comparator to Hickie because male partners in law firms are far less likely to take five months of leave and then return to work on a part-time basis. Adverse action protections in labour law have been interpreted similarly in ways that disadvantage claimants. Construction Forestry Mining and Energy Union v Endeavour Coal, a 2015 “adverse action” claim under the labour law statute provides a good illustration.63 This claim involved a maintenance fitter employed in a mine who was moved against his wishes from a weekend roster to a less well remunerated weekday roster. This followed a series of authorized absences from work by the worker under various forms of personal/carer’s leave—for his own Both these matters were addressed in the Disability Discrimination and Other Human Rights Legislation Amendment Act 2009 (Cth), Schedule 2, which enacted an “unjustifiable hardship” exemption for educational providers in relation to existing students and amended the definition of “disability” in s 4 to make it clear that a disability “includes behaviour that is a symptom or manifestation of the disability.” Had these provisions existed at the time of Purvis, most likely the comparator methodology would have been applied differently, yet the educational authority would have likely been ultimately successful. 62 See e.g. Mayer v ANSTO, [2003] FMCA 209; Commonwealth of Australia v Evans, [2004] FCA 654; Sterling (Commerce) Pty Ltd v Illif, [2008] FCA 702; Lipman v Commissioner of Police, [2015] NSWCATAD 250. See further Anna Chapman, “Australian Anti-Discrimination Law, Work, Care and Family,” Centre for Employment and Labour Relations Working Paper No 51 (2012) at 19-21; Belinda Smith & Joellen Riley, “Family-Friendly Work Practices and the Law” (2004) 26 Sydney L Rev 395. 63 Construction Forestry Mining and Energy Union v Endeavour Coal Pty Ltd, [2015] FCAFC 76, leave to appeal to the High Court of Australia was rejected on 11 December 2015; see further Beth Gaze, Anna Chapman & Adriana Orifici, ‘Evaluating the Adverse Action Provisions of the Fair Work Act: Equality Thwarted?’ in John Howe, Anna Chapman & Ingrid Landau, eds, The Evolving Project of Labour Law (Sydney: Federation Press, 2017) 88. VOL. 14 JOURNAL OF LAW & EQUALITY 129 sickness and also in order to care for his partner, who was unwell, and their three preschool-aged children. The worker claimed that his employer had subjected him to “adverse action” in the form of the change in roster because he had exercised his workplace right to take personal/carer’s leave or because of his family or carer’s responsibilities. His claim, like that of the claimants in Hickie and Purvis, was unsuccessful. The court accepted that the employer’s sole reason for moving the worker to the weekday shift was “his poor attendance” record and not because he had taken his legal entitlements to personal/carer’s leave. The real-life connection between taking personal/carer’s leave, which by its nature is unpredictable, and the worker’s attendance record, was not seen as relevant by the court. The employer’s decision-maker gave evidence that he did not care why the worker was absent, only that the worker was absent. This evidence was accepted by the court, and this meant that the employer had not contravened the “adverse action” prohibition in the statute because the change in roster did not occur because the worker had exercised his workplace right to personal/carer’s leave. The precedential value of both Purvis and Endeavour Coal is significant and effectively reduces the scope of the substantive protections, as well as discourages claimants from pursuing claims, a matter that is explored next. C. Procedure No or Partial Enforcement Frameworks Some work-and-care provisions have no legal framework of enforcement at all. Although the labour law statute provides that employers are only entitled to reject a request for an alteration in working arrangements, or for an extension on the first twelve months of unpaid parental leave, for “reasonable business grounds,” the legislation provides no ability to challenge the merits of an employer’s rejection of each of these types of requests.64 It was a deliberate policy choice of Parliament that these two mechanisms provide a right to ask, but not a right to receive, reasonable accommodation of the worker’s care responsibilities. Although it appears that employers in Australia frequently grant requests by workers for accommodation of their care responsibilities, case study research reveals that a lack of fit frequently arises between the 64 FW Act, supra note 7, ss 44(2), 739(2), 740(2). For an analysis of the parts of the right to request scheme that are legally enforceable, such as the requirement on the employer to provide in writing “details of the reasons” for a rejection of the request and what might be drawn from such provisions, see Anna Chapman, “Is the Right to Request Enforceable?” (2013) 26 Austl J Lab L 118. 130 WORK-AND-CARE INITIATIVES VOL. 14 agreed new arrangement, on the one hand, and expectations regarding workload and job design, on the other.65 For example, a mother returning from parental leave may come back to work with reduced hours but with the same volume of tasks and no reduction in the expectations of line managers.66 This suggests a lack of fit exists between the right-to-request mechanism (and anti-discrimination law’s obligation of reasonable accommodation) and other aspects of labour law such as contractual arrangements and management practices. This is partly a problem in the enforcement of the agreed arrangement and partly related to how the agreed arrangement sits within broader dynamics of the work relationship. A similar lack of effective enforcement affects the federal 2012 Workplace Gender Equality Act. Larger organizations must have policies and strategies in place or at least be working towards the development of such policies and strategies. 67 Sanctions on employers for failing to comply with these obligations are limited. Employers may be named in Parliament as violating the Act, and they may be ineligible for federal government contracts, grants, or financial assistance.68 In relation to the latter violations, however, it has been pointed out that “it is unclear how often this actually happens in practice.”69 In addition, the positive duty on employers to “take reasonable and proportionate measures” imposed by the 2010 Equal Opportunity Amendment Act is not enforceable by claimants.70 As originally enacted, the Victorian Equal Opportunity and Human Rights Commission was given power to conduct public inquiries into possible breaches of this positive duty and to issue compliance notices 65 Bernadette O’Neill, Fair Work Commission, General Manager’s Report into the Operation of the Provisions of the National Employment Standards Relating to Requests for Flexible Working Arrangements and Extensions of Unpaid Parental Leave under s. 653 of the Fair Work Act 2009 (Cth): 2012-2015 (Melbourne: Fair Work Commission, 2015); Rae Cooper & Mariam Baird, “Bringing the ‘Right to Request’ Flexible Working Arrangements to Life: From Policies to Practices” (2015) 37:5 Employee Relations 568 at 579. 66 Cooper and Baird, supra note 65 at 577-8. This problem is also noted in Natalie Skinner, Barbara Pocock & Claire Hutchinson, A Qualitative Study of the Circumstances and Outcomes of the National Employment Standards Right to Request Provisions: A Report to Fair Work Australia (Adelaide: Centre for Work and Life, 2015) at 4. 67 WGEA, supra note 40, ss 19B, 19C. 68 Ibid, s 19D, note in s 18. 69 Andrew Stewart, Stewart’s Guide to Employment Law, 6th ed (Sydney: Federation Press, 2018) 8. Even though this formal enforcement framework is weak, some scholars have found cause to be optimistic in the potential of the legislative scheme to generate a market for gender equality performance, enabling employees and others to demand better performance by organizations regarding gender equality. Belinda Smith & Monica Hayes, “Using Data to Drive Gender Equality in Employment: More Power to the People?” (2015) 28 Austl J Lab L 191. 70 Equal Opportunity Amendment Act 2011 (Vic). VOL. 14 JOURNAL OF LAW & EQUALITY 131 and enforceable undertakings where breaches were found. Regrettably, those enforcement procedures were weakened in 2011 following a change of government. The commission now has power to conduct an investigation into a matter and, upon conclusion of that investigation, may take any action it sees fit, including a report to Parliament. 71 In fact, however, the commission has never conducted an investigation into a possible breach of a positive duty. Reduced funding to the commission also means that it is unlikely to do so in the future. Procedural Road Blocks to Enforcement Anti-discrimination law is based on a model of enforcement by individual claimants; there is no public enforcement body for anti-discrimination law. 72 The “adverse action” provisions in the labour law statute also provide a claim-based model of enforcement, although the Fair Work Ombudsman plays an important role as the public inspectorate to ensure compliance with the labour law statute. The role that the ombudsman can play, however, is limited by its resources. Claimants must choose at the outset between the legal claims that they may pursue. The Australian system generally requires that only one legal claim be lodged in relation to the same behaviour.73 Weighing the advantages and disadvantages of different avenues of redress is complex, and it appears that many claimants do not have the benefit of legal advice at this stage or at all. While parties generally bear their own legal costs in “adverse action” litigation,74 the losing party in the federal anti-discrimination system will usually be ordered to pay the legal costs of the successful party.75 This approach to 71 Vic EOA, supra note 27, ss 15(4), 139-43. 72 Discrimination agencies may play a role as amicus curiae in litigation (as “friend of the court”) where this would be in the public interest, but reductions in funding effectively curtail this potential. Rees et al, supra note 33 at 12.13.9. 73 E.g., in relation to a work-and-care issue, the choice might be between a claim under the SDA, supra note 27; a claim under a state discrimination statute such as the Victorian Equal Opportunity Act; an adverse action claim under the labour law statute; or an application for an order to stop bullying under Part 6-4B of the FW Act, supra note 7. See e.g. Bashour v Australia & New Zealand Banking Group Ltd final (Human Rights), [2015] VCAT 308. 74 FW Act, supra note 7, s 570; see further Stewart, supra note 69 at 9.4. 75 See e.g. Fetherston v Peninsula Health (No 2), [2004] FCA 594; Chen v Monash University (No 2), [2016] FCAFC 93. The discretion to order costs arises from the Federal Court of Australia Act 1976 (Cth), s 43; the Federal Circuit of Australia Act 1999 (Cth), s 79. In contrast, in most state anti-discrimination systems, costs will only be ordered against an unsuccessful party if they are seen to have acted unreasonably in bringing the claim or in the conduct of the litigation. See e.g. Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 109. 132 WORK-AND-CARE INITIATIVES VOL. 14 costs in the federal anti-discrimination system has been shown to inhibit the enforcement of federal anti-discrimination law.76 There are many self-represented claimants in both the anti- discrimination law system and the “adverse action” system. Those claimants, as with all claimants, must manage their way through a number of procedural road blocks to lodge their claim, proceed to conciliation conducted by a commission, and, if not settled, eventually have their claim heard on its merits by a tribunal or court. 77 Proceedings can be slow, reflecting the inadequate levels of funding of commissions, tribunals, and courts. 78 Procedural mechanisms operate in practice to deny claimants access to justice, especially self-represented claimants without access to legal advice. Two procedural matters stand out. These are examined in turn. The first procedural matter concerns limitation periods; a claimant who brings an “adverse action” claim under the labour law statute for dismissal from employment has a maximum of twenty-one days from the date of dismissal to lodge their application. Extensions of time to the twenty-one-day period are possible but only in “exceptional circumstances.” 79 Unsurprisingly, there are many applications for extensions of time, and, indeed, it appears that there may be more 76 Beth Gaze & Rosemary Hunter, “Access to Justice for Discrimination Complainants: Courts and Legal Representation” (2009) 32(3) UNSWLJ 699. 77 The conciliation processes are confidential, and little public information is available about them and their outcomes. It is known though that in the range of 70-80 percent of claims in anti-discrimination law as well as the adverse action protections (at least in relation to dismissal) do not proceed to a hearing on the merits. AHRC, 2015-2016 Complaint Statistics (Sydney: AHRC, 2016) [AHRC, 2015-2016 Complaint Statistics]; Victorian Equal Opportunity and Human Rights Commission (VEOHRC), 2015-2016 Annual Report (Carlton: VEOHRC, 2016) at 18; Fair Work Commission, Annual Report 2015-2016 (Melbourne: Fair Work Commission, 2016) at 51 [Fair Work Commission, Annual Report 2015-2016]. 78 The AHRC records that “just under half of all complaints [in the 2015-16 financial year] were finalised within 3 months (47%), 82% were finalised within 6 months, 94% within 9 months and 98% within 12 months.” AHRC, 2015-2016 Complaint Statistics, supra note 77. In 2015-16, 80 per cent of claims under Vic EOA, supra note 27, were finalized within six months. VEOHRC, supra note 77 at 18. In contrast, the Fair Work Commission records that 90 per cent of adverse action disputes involving dismissal were finalized within 103 days (approximately 3.5 months): Fair Work Commission, Annual Report 2015-2016, supra note 77 at 50. Following finalization of a complaint by all of these bodies, where the matter is not settled, the claimant may then lodge a claim in a court or tribunal for a hearing on its merits. 79 FW Act, supra note 7, ss 366(1)-366(2). In determining whether “exceptional circumstances” exist, the tribunal is directed to consider: the reason for the delay; any action taken by the applicant to dispute the dismissal; prejudice to the employer; the merits of the application; and fairness as between the applicant and other persons in a like position (s 366(2)). VOL. 14 JOURNAL OF LAW & EQUALITY 133 applications for extensions of time than there are hearings of “adverse action” claims on their merits. The tribunal hearing these applications for extensions of time interprets the phrase “exceptional circumstances” very narrowly. As a result, very few extensions of time are granted to claimants, who must then either commence another legal action (if there is still time left) or abandon their grievance altogether. A 2016 case illustrates the narrow interpretive approach of the tribunal. 80 The claimant, who was self-represented, had lodged her application within the twenty-one-day time period, but tribunal staff could not open the attachments to her emailed application because they were formatted using word processing software not approved under the tribunal’s rules. The tribunal quickly alerted the applicant to the problem with formatting, provided her with a copy of the relevant rule, and told her that because of the formatting error her application had not been lodged. She was able to convert the attachments to an acceptable format and email the documents to the tribunal the following day, twenty-four hours outside the twenty-one-day time limit. She explained to the tribunal that the delay in converting the files and emailing them to the tribunal arose because she lived in a remote location, with limited phone coverage and Internet access. She gave evidence that she had experienced difficulty in obtaining legal advice over the telephone from a community legal centre due to the poor phone reception where she lived. The tribunal concluded that there were no “exceptional circumstances” to justify an extension of time, especially as the tribunal construed the merits of her claim as weak and because she did not take action to contest the dismissal with her employer, other than by lodging the application for “adverse action.” The claim itself appeared to be relatively complex, involving a labour hire agency arrangement in which the claimant alleged that her employer reneged on an earlier agreement to allow her to work from home two days per week. The commissioner hearing the extension of time application commented (negatively) that the application did not contain an outline of legal argument regarding the “adverse action” claim or witness statements.81 Despite this lack of legal argument and evidence, the commissioner was prepared to conclude that the legal claim itself was “weak.” As a result, the claimant’s application 80 Davie v North Queensland Primary Health Network, [2016] FWC 8979. 81 Ibid at 35. 134 WORK-AND-CARE INITIATIVES VOL. 14 for an extension of time was dismissed, and this ended her ability to pursue an adverse action claim.82 A second procedural matter involves summary dismissal. Claims under anti-discrimination and labour law statutes are heard by federal courts and state tribunals that operate under variously worded provisions that enable the court or the tribunal to dismiss an application (at any time) where it can be shown by the respondent (employer) that the application is, for example, “frivolous,” “vexatious,” “an abuse of process,” or has “no reasonable prospect of success.” 83 It has become commonplace for employers to launch strongly fought summary dismissal applications in the period before the hearing into the application. These interim applications by employers have become a regular part of both the anti- discrimination system and the labour law system and clearly benefit employers over claimants. Although the summary dismissal provisions might have been drafted with the objective of reducing the time and costs overall of the system, as one judge has commented: [I]t is often the case … that an application for summary dismissal achieves precisely the opposite: [that is, it creates] increased costs and further delay. In this matter, for example, the [merits] could readily have been finally determined in the same amount of time and with the same amount of effort as this application [for summary dismissal].84 These two mechanisms—short and strict time limits for “adverse action” claims and summary dismissal applications—operate in the context of chronic underfunding for community legal centres, which are the obvious source of legal advice and assistance for claimants.85 A brief perusal of the case law on procedural matters reveals that many self-represented claimants 82 It is highly unlikely that she would now be successful in an unfair dismissal claim, as that too has a twenty-one-day time period, with extensions of time in “exceptional circumstances” only. FW Act, supra note 7, ss 394(2)-394(3). 83 The rules on summary dismissal of a claim are contained in the Federal Court of Australia Act 1976 (Cth), s 31A; Federal Court Rules 2011 (Cth), rule 26.01; Federal Circuit Court of Australia Act 1999 (Cth), s 17A; Federal Circuit Court Rules 2001 (Cth), rule 13.10. For similar state legislation, see e.g. Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 75(1). 84 Sun v EP2 Management Pty Ltd, [2016] FCCA 1381 at 10. 85 Amanda Alford & James Farrell, “Community Legal Centres Face Funding Crisis” (2016) 41:1 Alternative Law Journal 2. VOL. 14 JOURNAL OF LAW & EQUALITY 135 are struggling as they attempt to navigate their way through the systems.86 Although trade unions have been, and remain, less present in the enforcement of anti-discrimination law, they are active participants in enforcement in the labour law system, especially in relation to issues of freedom of association.87 Yet there is a limit to their ability to fill the void left by a reduction in public funding of community legal centres. D. Failure to Recognize Diversity There are two main ways in which Australian work-and-care initiatives assimilate diverse family forms to a uniform model. The first relates to intersectionality and the second to the coverage of diverse family-and- care relationships. Intersectionality Kimberlé Crenshaw, writing in the American context, has shown how a legal framework that prohibits discrimination on a list of specific attributes such as race and sex, which she called the “single-axis framework,” effectively marginalizes the claims of those who experience multiple, intersecting discriminatory forces.88 The result is a distortion in the way that intersectional experiences of discrimination are conceptualized, analyzed, and remedied by the law. Australian anti-discrimination legislation, as well as the “adverse action” protections in the labour law statute, is characterized by a “single-axis framework,” and this feature may render it difficult for some claimants to articulate their grievances in a way that is cognizable under the relevant legislative scheme, while remaining authentic to their experiences. 89 Difficulties might exist for claimants 86 See e.g. Wong v Dong Lai Sun Massage Pty Ltd, [2016] FCCA 18; Sultana v Thomastown Child Care Centre Inc, [2016] FWC 422; Noronha-Barrett v Australian National University, [2015] FWC 5879. 87 See e.g. Barclay v Board of Bendigo Regional Institute of Technical and Further Education (2010), 193 IR 251; Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd, [2016] FCA 987; Port Kembla Coal Terminal Ltd v Construction, Forestry, Mining and Energy Union, [2016] FCAFC 99. 88 Kimberlé Crenshaw, “Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Policies” (1989) U Chicago Legal F 139 at 139; see also Nicola Duclos, “Disappearing Women: Racial Minority Women in Human Rights Cases” (1993) 6 CJWL 25. 89 Under most anti-discrimination statutes, claimants must establish that at least one attribute covered by the Act—be it sex, race, sexuality, parental status, or care or family responsibilities—was one of the reasons for the conduct. See e.g. SDA, supra note 27, s 8. Other discrimination statutes impose the more onerous standard requiring that at least one attribute was “a substantial reason” for the conduct. See e.g. Vic EOA, supra note 27, s 8(2)(b). The adverse action provisions require only that the prohibited reason be 136 WORK-AND-CARE INITIATIVES VOL. 14 where all dimensions of the intersectional discrimination are represented by protected attributes; it is even more difficult where non-protected factors are also present, such as economic disadvantage and homelessness. A claimant might feel that her experience has been misrepresented through the need to adopt the categories and concepts of the legislation. For example, Indigenous scholar Hannah McGlade has explained that “[w]hen an Aboriginal woman experiences discrimination, she experiences discrimination because she is an Aboriginal woman, not just ‘Aboriginal’ or ‘woman’ or ‘Aboriginal’ plus ‘woman’.”90 The decision of the Equal Opportunities Division of the New South Wales Administrative Decisions Tribunal in Tleyji v TravelSpirit Group Pty Ltd illustrates how the intersectional character of the claimant’s experience may have been obscured by the single-axis framework in a way that undermined the veracity of her case.91 The claimant brought her claim under three attributes in the New South Wales anti-discrimination statute: responsibilities as a carer, sex, and race. The allegations of discrimination concerned several matters, including her employer’s refusal to allow her to return from parental leave on a part-time basis and the hostile work environment that she says she experienced upon her return from parental leave.92 The tribunal dealt with the claim relating to carer responsibilities and sex together, finding that there was insufficient evidence to establish that such a hostile work environment existed. The claim of race discrimination was examined separately. 93 The allegation of race discrimination arose in relation to the claimant speaking in Arabic when she took personal phone calls at her desk, at least some of which were from her family. She was told by her supervisor that she was only to take calls in Arabic upstairs in the staff room, which was out of ear shot of others in the small, open-concept office space.94 one of the reasons for the conduct, although this has been interpreted to require that the prohibited reason be a “substantial and operative” factor. Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012), 290 ALR 647 at 103; see also FW Act, supra note 7, s 360. 90 Hannah McGlade, “Reviewing Racism: HREOC and the Racial Discrimination Act 1975 (Cth)” (1997) 4:4 Indigenous Law Bulletin 12. 91 Tleyji, supra note 30. 92 Ibid at para 18. 93 The claim of discrimination on the attributes of carer’s responsibilities and sex were dealt with in ibid at paras 5-113, and the race discrimination complaint was dealt with in paras 114-37. 94 Tleyji relied on the characteristic extension mechanism to argue that speaking Arabic is a characteristic that concerns generally her race as being Lebanese. Ibid at paras 114, 128. VOL. 14 JOURNAL OF LAW & EQUALITY 137 The strong evidence of racial tension in the workplace was ignored in the tribunal’s decision that her claim regarding the hostile work environment upon her return from parental leave lacked factual substance. While the tribunal accepted that Tleyji believed that she returned to a work environment in which her colleagues were “cold, unhelpful and unfriendly” and that the atmosphere had been “better” before she went on leave, she could not point to particular instance of this changed environment to the satisfaction of the tribunal. 95 In contrast, in the tribunal’s analysis of the race claim, it did identify the existence of an “explosive environment.” This environment comprised deterioration in the relationship between Tleyji and her supervisor, conflict over her request for part-time work, and other issues, such as Tleyji’s attendance record and the suggestion that she may have been making too many personal phone calls.96 Notably, the tribunal did not draw on this material as possible contextual evidence of racial tension in the workplace. Rather, it discussed this material under the heading of “causation” in examining whether the less favourable treatment of the claimant was causally related to her race.97 This is interesting as the evidence of causation on the race claim was compelling. Tleyji was permitted to make and take phone calls in English from her desk, as were others in the workplace; the supervisor’s directive related only to her speaking in Arabic from her desk.98 Ultimately, Tleyji succeeded both on her claim of indirect discrimination related to carer responsibilities when she was denied her request to return to work on a part-time basis and on her claim of direct discrimination related to race. Reading the decision leaves a very clear impression that all of the conduct cited by Tleyji was interrelated and that examining the sex and carer claim and events in isolation from the race claim and identified event obscured the claimant’s experience as relating to all three attributes at the same time. For example, the hostility that the claimant says she experienced when she returned from parental leave, which she notably identified as related to her responsibilities as a carer, seemed consistent with the racial tension in the workplace. In addition, at least some of the phone calls that Tleyji made in Arabic were to her family members, and as a mother returning to work after parental leave, it seems credible to suggest that some of these may have related to the care of her baby.99 In 95 Ibid at paras 20-1. 96 Ibid at para 133; see also para 134. 97 Ibid at para 131. 98 Ibid at paras 124-5. 99 The content of the phone calls is not apparent from the decision. 138 WORK-AND-CARE INITIATIVES VOL. 14 these various ways, Tleyji’s experience of intersectional discrimination appears to have been lost by the single-axis framework of the legislation. Diversity and Reach Many anti-discrimination law and labour law mechanisms regarding care responsibilities were explicitly framed during the twentieth century to provide entitlements only in relation to care provided in the context of a heterosexual couple relationship. For example, a worker only qualified for unpaid parental leave where the person who gave birth was their “spouse” or “de facto spouse.” Until December 2017, when the federal parliament enacted legislation to recognize same-sex marriage, same-sex partners could not be “spouses” of each other.100 A “de facto spouse” was defined in the legal entitlements to mean “a person of the opposite sex to the employee who lives with the employee in a marriage-like relationship, although not legally married to the employee.” 101 Due to the explicit requirement that the partners be of “the opposite sex” to each other, same- sex partners could not be de facto spouses. From 2000 onwards, statutory definitions of “de facto” began to be rewritten for the purpose of recognizing same-sex relationships. The states acted in this respect earlier than the federal parliament, with New South Wales recognizing same-sex relationships in its anti-discrimination definition of “de facto” in 2000.102 The federal Parliament only moved to recognize same-sex couples as de factos in anti-discrimination law in 2008 and in labour law a year later in 2009.103 Both anti-discrimination law and labour law now recognize unmarried people in same-sex relationships who can in fact prove the existence of a relationship within the meaning of the legislative definition. Two themes reveal how the recognition of relationships in discrimination law and labour law operate to exclude family-and-care relationships that do not conform to the norms of law and, as will be explored, have a differentially exclusionary impact on lesbian, gay, bisexual, and transgender (LGBT) workers, their families, and care networks. These relate to the two-adult marriage-like couple, and the primary caregiver model. 100 Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth). 101 See e.g. Industrial Relations Reform Act 1993 (Cth), Part VIA Div 5, Sch 14; see similarly Workplace Relations Act 1996 (Cth), s 263. Both statutes are no longer in effect. 102 E.g., New South Wales provided recognition to same-sex relationships in its anti- discrimination statute from 2000: Anti-Discrimination Amendment (Carer’s Responsibilities) Act 2000 (NSW). 103 Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Act 2008 (Cth); FW Act, supra note 7. VOL. 14 JOURNAL OF LAW & EQUALITY 139 Two-Adult Marriage-Like Couple Some legal entitlements delineate the legal rule’s concept of care broadly and do not limit it to any particular family context.104 On the other hand, other labour law entitlements that recognize care assume the two-adult couple as the normative care relationship, which is understood in terms of marriage-like indicators such as living together, pooled finances, and public recognition of the relationship. Although this definition of couple now includes same-sex couples, it remains a conventional two-adult couple marked by marriage-like factors. The provisions of the federal 1984 Sex Discrimination Act are of this description. The Act prohibits discrimination in the work context on the ground of “family responsibilities,” which is then defined in a way that includes responsibilities to care for a partner in a “de facto relationship.”105 A “de facto relationship” means a relationship “as a couple living together on a genuine domestic basis.”106 In determining whether two people are a couple in this sense, the legislation provides that all relevant factors are to be taken into account, including any or all of the following matters: the duration of the relationship; the nature and extent of their common residence; whether a sexual relationship exists; the degree of financial dependence or interdependence, and any arrangements for financial support, between them; the ownership, use, and acquisition of their property; the degree of mutual commitment to a shared life; the care and support of children; the reputation and public aspects of the relationship.107 104 E.g., the Victorian Equal Opportunity Act renders discrimination on the ground of “status as a carer” unlawful, where “carer” is defined to mean “a person on whom another person is wholly or substantially dependent for ongoing care and attention.” Vic EOA, supra note 27, s 4. See similarly the right to request provisions in the FW Act, supra note 7, s 65(1A)(b); the ground of “family or carer’s responsibilities” in the FW Act, supra note 7, s 351 which is undefined and so potentially broad. 105 SDA, supra note 27, ss 4, 4A, 7A; AIA, supra note 57, ss 2D, 2F. This definition is also used in the provisions that prohibit discrimination on the ground of “marital or relationship status.” SDA, supra note 27, s 6. 106 SDA, supra note 27, s 2F(1)(c). 107 Ibid, s 2F(2). 140 WORK-AND-CARE INITIATIVES VOL. 14 The legislation is clear that it is irrelevant whether the two people are of different sexes or the same sex.108 Outside anti-discrimination law, other legal entitlements adopt a similar approach. The 2010 government-funded parental leave payment scheme under the Paid Parental Leave Act 2010 establishes a system of payments to be made to a birth mother or her “partner.”109 A “partner” is defined as “a member of a couple.” Attention is then directed to many factors that are similar to those listed in the Sex Discrimination Act.110 The labour law rules regarding both unpaid parental leave and personal/carer’s leave refer to a “de facto partner,” and while there is no specified list of factors to consider, the concept of de facto partner is defined as a person who “lives with the employee in a relationship as a couple on a genuine domestic basis (whether the employee and the person are of the same sex or different sexes).”111 The concept of “a couple” connotes two adults. This two-adult model may not sit well with many care arrangements, including those of LGBT workers, their families, and care networks. It fails to account for diverse care relationships that exist outside two-adult couples, such as might exist in sole-parent families, polyamorous relationships, and care between close friends, extended community, and kinship networks.112 The inclusive list of factors to consider specified in the Sex Discrimination Act, and elsewhere, originates in early divorce cases from the mid-1970s where judges were required to decide whether a marriage had broken down even though the husband and wife were still living under the same roof. These cases required judges to articulate the characteristics of marriage in order to determine whether those characteristics were still present or not between the two people.113 These origins reflect the indicia of the heterosexual ideal 108 Ibid, s 2D. The legislation assumes that gender is binary. This approach sits awkwardly with people who identify as gender fluid. 109 PPL Act, supra note 19, ss 12, 54(1)-(3). 110 Social Security Act 1991 (Cth), s 4(3). Notably, although claims can be brought by other non-parent carers who are not partners to the birth mother, these are identified as “exceptional” claims and are only granted in “exceptional” circumstances where the couple cannot provide adequate care to the baby. In this way, the exceptional claims provisions further reinforce the normativity of the two-adult parent couple. See Anna Chapman, “The New National Scheme of Parental Leave Payment” (2011) 24 Austl J Lab L 60. 111 FW Act, supra note 7, ss 12, 70(a)(i), 97(b). These provisions assume that gender is binary. 112 Such relationships may be covered under other categories recognized in the legislation, but they may not be. Close attention to each particular circumstance is required. E.g., the personal/carer’s leave provisions in FW Act also cover other “immediate family” plus members of the employee’s “household.” 113 See e.g. In the Marriage of Todd Case (No 2) (1976), 9 ALR 401; In the Marriage of Pavey (1976), 1 Fam LR 11,358; see further Belinda Fehlberg & Juliet Behrens, VOL. 14 JOURNAL OF LAW & EQUALITY 141 of marriage. They focus on domesticity, the existence of a sexual relationship, shared finances, raising children, and the public aspects of the relationship. While they are matters that may not align well with many contemporary heterosexual relationships, they are even less appropriate for LGBT people, where much diversity exists, for example, in relation to housing, financial arrangements, and the raising of children.114 The public nature of the relationship is particularly problematic for many LGBT workers who are closeted in their workplace about their relationships and families. For example, in 2015, 62 per cent of LGBT workers felt they were unable to disclose their sexuality or gender identity in their workplace, despite wanting to.115 Primary Carer Model Legal initiatives relating to the care of babies and infants reveal a primary carer model. The labour law entitlement to unpaid parental leave is available to women who give birth, or to her spouse or de facto partner,116 with only one member of the couple being permitted to be on unpaid parental leave at one time, other than for eight weeks when both members of the employee couple may be on leave together.117 This reflects a vision of care by one carer only—the primary carer—other than for the eight weeks of concurrent leave. Under the 2010 government scheme of parental leave payment, only one person can be recognized as the child’s “primary carer” and in receipt of a parental leave payment at the one time.118 The concept of “primary carer” is defined to mean that “the child is in the person’s care in that period” and “the person meets the child’s physical Australian Family Law: The Contemporary Context (Oxford University Press, 2008) at 4.4.1.3; Belinda Fehlberg et al, Australian Family Law: The Contemporary Context, 2nd ed (Oxford University Press, 2015) at 91, n 95. 114 See e.g. Deborah Dempsey, Same-Sex Parented Families in Australia, CFCA Paper No 18 (Canberra: Australian Institute of Family Affairs, 2013); Kath Reid, “Dancing Our Own Steps: A Queer Families’ Project” (2008) 2 International Journal of Narrative Therapy and Community Work 61; Elizabeth Short et al, Lesbian, Gay, Bisexual and Transgender (LGBT) Parented Families: A Literature Review Prepared for The Australian Psychological Society (Melbourne: Australian Psychological Society, 2007). 115 This research suggests also that it is unlikely that these workers will claim their legal entitlements relating to care responsibilities from their employer in the first instance and also unlikely that they will complain to a tribunal if those entitlements are not forthcoming from their employer. AHRC, Resilient Individuals: Sexual Orientation, Gender Identity and Intersex Rights, National Consultation Report (Sydney: AHRC, 2015) 19. 116 FW Act, supra note 7, s 70(a)(i). 117 Ibid, s 72(5). 118 PPL Act, supra note 19, s 47(3). 142 WORK-AND-CARE INITIATIVES VOL. 14 needs more than anyone else in that period.”119 This envisages that one person is the sole or, at least, the main carer. This approach was softened slightly by the introduction of two weeks of DAPP in 2012, which permits the primary claimant (typically, the mother) and her partner to be carers of the child concurrently for the two weeks of DAPP. A primary caregiver model may be a poor fit for many contemporary families and care relationships. It appears to be a particularly poor fit for lesbian relationships, where the care of babies and infants and household work is shared more evenly between the couple.120 One worker in a lesbian relationship gave evidence to the Australian Human Rights Commission inquiry into supporting working parents: Neither my partner nor I like that this system we live in [which] requires there to be a “primary” parent. We are both primary, we are equally important parents, we both need to spend quality time with our daughter, we both have interesting and rewarding careers, we both need to make money.121 IV. CONCLUSIONS This discussion of the main anti-discrimination and labour law entitlements in Australia regarding work and care reveals four thematic limitations with them. The language of the legislation has combined with conservative judicial interpretations, procedural barriers, and insufficient sensitivity to diversity to render it ineffective in enabling workers to combine work with family obligations. These inadequacies exist in a neo- liberal context that is moving against the interests of women workers and workers with care responsibilities more generally. For example, increases in precarious work and the growing feminization of those forms of work receive little, if any, government attention. Commercial childcare has become less affordable as well as less available, making it harder for women to be engaged in the labour market.122 At the other end of the labour market, the working hours of full-time employees continue to 119 Ibid, s 47(1). 120 Dempsey, supra note 114; Amaryll Perlesz et al, “Organising Work and Home in Same- Sex Parented Families: Findings from the Work Love Play Study” (2010) 31:4 Australian and New Zealand Journal of Family Therapy 374. 121 AHRC, Supporting Working Parents, supra note 2 at 89. 122 Roger Wilkins, The Household, Income and Labour Dynamics in Australia Survey: Selected Findings from Waves 1 to 15 (Melbourne: University of Melbourne, 2017) at 24-6. VOL. 14 JOURNAL OF LAW & EQUALITY 143 increase, as does work intensification, making it harder both for full-time employees to manage care responsibilities and for those with care responsibilities to work full-time. All these forces converge to particularly disadvantage women and others with care responsibilities. Working Time and Family Life: Looking at the Intersection of Labour and Family Law in Québec Stéphanie Bernstein and Mathilde Valentini ABSTRACT “Availability” is a key concept in both labour and family law. This article explores how labour and family law intersect and interact when there is a potential conflict between employers’ availability requirements and the availability requirements for parenting in shared custody arrangements. Through case law illustrations from Québec in both family and labour law, it looks at how tribunals have treated the conflict between employees’ work availability and the fulfillment of custody obligations. The article suggests that the two branches of law appear to be talking past each other on the question of working parents’ availability, particularly in relation to working-time arrangements. In addition, the disparities that are maintained by labour law in the treatment of precarious workers may also possibly be being reproduced in the family law forum. Although the article presents exploratory research and firm conclusions are premature, it appears clear that labour law will not be able to continue to perpetuate a strict family life/work divide for much longer and will have to take into consideration developments in family law and the evolution of family structures. I. INTRODUCTION “Availability” is a key concept in both labour and family law. In the case of labour law, the requirement for employees to be available to work stems from the managerial prerogative to determine working time, limited only by legislated and negotiated norms. Although an employee’s control over working time varies from country to country, 1 it is relatively weak in Stéphanie Bernstein is professor of labour and employment law at the Law Department of the Université du Québec à Montréal, and a member of the Centre de recherche interdisciplinaire sur le bien-être, la santé, la société et l’environnement (www.cinbiose.uqam.ca) and of the Interuniversity Research Centre on Globalization and Work (www.crimt.org). Mathilde Valentini is a lawyer and Master of Laws, student at the Université du Québec à Montréal. The authors wish to thank the research team for Precarious Employment, Atypical Schedules and Work-Family Balance: An Interdisciplinary Analysis on Individual and Collective Strategies, a project supported by the Social Sciences and Humanities Research Council (2015-19). 1 Colette Fagan et al, The Influence of Working Time Arrangements on Work-Life Integration or ‘Balance’: A review of the international evidence. Conditions of Work 146 WORKING TIME AND FAMILY LIFE VOL. 14 Canada. Employee availability requirements tend to be high, and schedule predictability tends to be low. 2 In the family law context, parents’ availability is a crucial factor in deciding which custody arrangement is in the child’s “best interest,” which is the guiding criterion in Canadian family law. 3 As in many countries, Canadian labour law initially developed on the basis of two interconnected premises: the traditional male breadwinner family and the worker who is “unencumbered” by family care responsibilities.4 The reality today is different. In Canada, women make up almost half of the workforce, although they are still disproportionately responsible for family responsibilities. 5 Family structure has also changed over the years, and the number of children who do not live with both of their biological or adoptive parents has increased. Family law with respect to shared parenting has also evolved with both parents maintaining significant contact with their children if they separate and fathers spending more time with their children.6 While equal custody and Employment Series No 32 (Geneva: International Labour Office, 2012); Sangheon Lee, Deirdre McCann & Jon C Messenger, Working Time around the World: Trends in Working Hours, Laws and Policies in a Global Comparative Perspective (Geneva: International Labour Office, 2007). 2 Guylaine Vallée & Dalia Gesualdi-Fecteau, “Setting the Temporal Boundaries of Work: An Empirical Study of the Nature and Scope of Labour Law Protections” (2016) 32:3 Intl J Comp Lab L & Ind Rel 344; see also Ontario, Ministry of Labour, Changing Workplaces Review: Special Advisors’ Final Report (Toronto: Government of Ontario, May 2017) at 187-98, 218-25, online: between parents after a divorce or a separation is not predominant, there is a heavy trend towards some form of shared physical custody.7 This article looks at how labour and family law intersect and interact when there is a potential conflict between employers’ availability requirements and the availability requirements for parenting in shared custody arrangements. Case law from Québec in both family and labour law illustrates how tribunals have treated the conflict between employees’ work availability and the fulfillment of custody obligations. It also reveals a certain discourse on these issues. We examine if and how family law forums respond to the availability requirements of labour law and if and how labour law forums respond to availability requirements in shared custody situations. The underlying question is whether and how labour law shapes family law and whether family law could ultimately push labour law to evolve beyond the model of the “unencumbered,” fully available worker. The aim is to broaden the discussion on work-family conflict and to determine whether there is a dialogue between these two branches of law. After a description of the situation of working parents in Québec, we look at the recent evolution of family law and the prevalence of the norm of shared parenting and then examine how labour law deals with work- family conflict. We end with a discussion on the intersections of family and labour law that shows that in fact the two branches of law appear to be talking past each other on the question of working parents’ availability. We also discern some gendered differences in the treatment of availability issues in the case law, whereby women are presumed to be more available than men to fulfill parenting responsibilities. We acknowledge that the limited sample of cases we draw on does not permit definitive conclusions about the interaction of these two bodies of law. We do think our analysis justifies the call for further research along these lines. II. THE SITUATION OF WORKING PARENTS IN QUÉBEC It has been twenty years since an integrated family policy was launched in Québec with three main pillars: universally accessible, state-subsidized educational childcare services with a reduced “$5-a-day” parental contribution; improved fiscal measures for families with children under the age of eighteen; and provincial parental leave insurance that was a significant improvement over the existing federal scheme and that includes 7 Francine Cyr et al, Prévalence de la garde partagée chez les familles québécoises ayant un enfant né en 1997-1998: profil sociodémographique et psychologique, research report presented to the Québec Ministry of Justice, Québec (2011); Michel Tétrault, La garde partagée et les tribunaux: une option ou la solution? (Cowansville, QC: Yvon Blais, 2006). 148 WORKING TIME AND FAMILY LIFE VOL. 14 paid paternity leave that cannot be transferred to the child’s mother. 8 While the universal nature of childcare services has been eroded with the gradual introduction of parental contributions based on family income,9 the objective of encouraging more male parents to take paid leave upon the birth or the adoption of a child has been met. The number of men who take paid leave rose sharply from 2006, the year of the scheme’s implementation, until 2009, and it continues to rise, albeit at a slower rate. In 2016, 59,983 men took paid leave, compared to 38,269 in 2006.10 In 2013, while only 12.2 percent of newborns or adopted minor children outside of Québec had fathers who took, or intended to take, a period of parental leave, this number rose to 83 percent inside Québec.11 The provincial parental insurance scheme has had a positive impact on the sharing of parenting responsibilities between mothers and fathers.12 It should also be noted that fathers who take paternity leave are also regarded favourably by family law courts; the case law tends to show that fathers who take leave are viewed as demonstrating their willingness to be involved in their children’s lives when the parents separate and the custody and access rights involving very young children are at issue.13 Of course, this does not mean that the Québec parental insurance scheme has solved problems underpinning the gendered division of labour in the home. A recent Québec study suggests that when both parents are present, fathers 8 Québec, Ministère du Conseil exécutif, Nouvelles dispositions de la Politique familiale: Les enfants au cœur de nos choix (Québec City: Government of Québec, 1997). Compared to elsewhere in Canada, Québec has the most generous paid leave for expectant mothers and new parents with the entry into force of the Québec parental insurance plan in 2006 and changes to minimum employment standards legislation. Act Respecting Parental Insurance, CQLR c A-29.011; Act Respecting Labour Standards, CQLR c N-1.1, ss 81.2-81.17 [Labour Standards Act]; Québec, Ministère de la Famille et des Ainées, Analyse comparative des politiques en matière familiale dans les provinces canadiennes (Québec City: Government of Québec, June 2011). 9 Universality was severely undermined in an omnibus budget bill in 2015. See An Act Mainly to Implement Certain Provisions of the Budget Speech of 4 June 2014 and Return to a Balanced Budget in 2015-2016, SQ 2015, c 8, ss 160ff. 10 Québec, Conseil de gestion de l’assurance parentale, Rapport annuel de gestion 2016 (Québec City: Government of Québec, 2017) at 33. The number of women who take paid leave has also risen: in 2016, 68,361 women took paid leave, compared to 65,130 in 2006. 11 Statistics Canada, “Employment Insurance Coverage Survey, 2013,” The Daily (19 January 2015), online: still continue to occupy particular functions (for example, leisure activities versus staying home to look after a sick child), while mothers continue to shoulder a greater “mental burden” with respect to family responsibilities. 14 A broader discussion on the effective sharing of parenting responsibilities, however, is beyond the scope of this article. But the arrival of a child is obviously only the beginning of family responsibilities. As we will see, when returning to work after parental leave, many mothers and fathers find themselves in an environment that is not welcoming to employees with family responsibilities. This is especially true when it comes to working time arrangements that may conflict with parenting responsibilities. A recent statistical survey from Québec concerning parents with children aged zero to five years old showed that 31 percent of working parents had an “atypical” work schedule—that is, an irregular, evening, night, or weekend schedule.15 Men were slightly more likely to have this type of schedule (33 percent), as were parents in single-parent families (34 percent).16 At the same time, working parents reported having access to one or several measures to help balance work and family life: 56 percent of working parents reported having flexible work schedules; 54 percent had some paid family leave; 27 percent had adapted working time arrangements including shorter work weeks; and 20 percent could work from home. 17 However, 22 percent reported having access to none of these measures; this was the case for 25 percent of male parents, 35 percent of working parents without a high school diploma, and 33 percent of those with only a high school diploma.18 14 Conseil du Statut de la femme, Avis: Pour un partage équitable du congé parental (Québec City: Conseil du Statut de la femme, 2015) at 39ff, online: 150 WORKING TIME AND FAMILY LIFE VOL. 14 The proportion of working parents who had access to three or four of these measures increased with the level of formal education. The survey found that family structure and the number of children had no statistically significant impact on access to such measures.19 Thirty-three percent of working parents with “atypical” schedules and 39 percent of those who work fifty or more hours a week reported that their work responsibilities always or often interfered with their family life.20 Those with less access to measures to counter this interference also reported a larger negative impact of work on their family life. Although the “traditional” family remains the dominant model, children are more likely than before to see their parents separate. According to the 2011 General Social Survey on Families, about 1.2 million separated or divorced Canadians had children under the age of eighteen.21 In Québec, 37.7 percent of children under the age of twenty- five live with a single parent or in a blended family.22 After a separation, while children still remain mostly with their mother,23 they live in shared custody situations 28 percent of the time. 24 What has significantly increased over the past thirty years is the contact between fathers and children after a separation. When the children live with their mother, two- thirds of fathers maintain significant contact with regular or frequent access. 25 Combined with the shared custody data, three-quarters of separated fathers maintain a sustained parental relationship with their children.26 Significant contact between the two parents and their children after a separation has thus become the norm, leaving both mothers and fathers to juggle work and family life. 19 Ibid. 20 Ibid at 82-3. 21 Maire Sinha, “Parenting and Child Support after Separation or Divorce” in Statistics Canada, Spotlight on Canadians: Results from the General Social Survey, 2014, Catalogue No 89-652-X—No 001 (2014) at 5, online: III. SHARED PARENTING AND THE REQUIREMENT TO BE AVAILABLE In Québec civil law, child custody is one of the rights and duties of parental authority that can be entrusted to one or both parents; other attributes are the supervision, education, and maintenance of their children. 27 Both parents exercise parental authority together, even if custody is entrusted to one of the parents after a separation.28 This constitutes a difference with other Canadian provinces where the term “custody” normally refers to all of the rights and obligations that the parents have towards the child.29 When separation occurs, the only criterion to decide how custody will be determined is the “best interest of the child.” 30 This criterion leaves considerable discretion to the judge.31 There is no legal presumption that shared custody should be privileged,32 but the Québec Court of Appeal has determined that if certain criteria are met it should be seriously considered.33 Shared custody is defined as at least 40 percent of the time spent with one parent, and the remaining time spent with the other.34 It is often seen as an ideal form of custody arrangement that promotes greater democratization of family life and fosters better relationships between parents and children.35 Shared custody arrangements vary widely and are 27 Art 599 CCQ. 28 Ibid, arts 600, 605. In exceptional cases, for serious reasons, one of the parents can be deprived of all or part of this authority (ibid, art 606). 29 The difference between the concept of legal custody and physical custody does not exist in Québec. See Department of Justice Canada, Final Federal-Provincial-Territorial Report On Custody and Access and Child Support: Putting Children First (November 2002) at 7-8, online: 152 WORKING TIME AND FAMILY LIFE VOL. 14 not limited to every other week with one or the other parent, which is just one example; they can also change over time. A 2013 study compared Québec judgments that referred to custody arrangements; in 1998, 79 percent of the judgments confirmed that the mother would have sole custody compared to 5.4 percent of fathers; in 2008, this was the case for 60.5 percent of mothers and 13.5 percent of fathers.36 The same study showed that, in 1998, 8 percent of custody arrangements mentioned in judgments were shared; meanwhile, this figure was 19.7 percent in 2008. 37 Since the 1990s, judges have increasingly been awarding shared custody,38 underlining the principle that children should have access to both parents.39 Some authors have claimed that the courts have established a rebuttable presumption that physical custody should be shared, 40 while others have proposed introducing a legal 36 This is the most recent comprehensive analysis of judgments available. The study analyzed 2,000 child support orders made in 2008 and 1,503 made in 1998 in the province of Québec. These orders addressed both cases where there was a dispute between the parents with respect to physical custody and the cases where the parents agreed on the custody arrangement, which was mentioned in the judgment, but not on child support. Émilie Biland & Gabrielle Schütz, “Physical Custody of Children in the Province of Québec: A Quantitative Analysis of Court Records,” Collection Que savons-nous?, online: presumption of shared custody.41 Public opinion in Québec also appears to be strongly in favour of shared custody, particularly for children who are over two years old,42 and some authors argue that this form of custody has become the reference for newly separated parents and is now the dominant social norm in Québec.43 However, one recent study of family lawyers and their experience negotiating custody arrangements suggests that the prevalence of shared custody arrangements varies according to the parents’ revenue; the higher the parents’ revenue, the more likely that a shared custody agreement will be reached and the lower the parents’ revenue, the more likely that the mother will have custody.44 When parents separate, they generally decide custody arrangements between themselves.45 They may file a motion in court to obtain custody and child support; if they are married, they can make such a request in a divorce proceeding.46 Even when legal proceedings are filed, parents will nevertheless most often reach an agreement. The intervention of the court to settle a custody dispute occurs in less than 10 percent of cases.47 In this context, the case law gives a very imprecise picture of the nature and extent of shared custody arrangements since most arrangements are increasingly decided out of court, and a hearing before a judge is a last resort.48 The criteria developed by the courts nevertheless serve as a guide to determine shared custody arrangements outside of the judicial forum, notably in the context of family mediation.49 The best interest of the child is the absolute 41 See e.g. Laberge, Pour une présomption, supra note 38. 42 Godbout, Parent & Saint-Jacques, “Le meilleur intérêt de l’enfant,” supra note 38 at 180. 43 See e.g. Denyse Côté & Florina Gaborean, “Nouvelles normativités de la famille: la garde partagée au Québec, en France et en Belgique” (2015) 27:1 CJWL 22 at 39-43. 44 Muriel Mille & Hélène Zimmermann, “Des avocats et des parents: Demandes profanes et conseils juridiques pour la prise en charge des enfants au Québecˮ (2017) 95:1 Droit et société 43 at 54-5. 45 About 40 percent of separated Canadian parents do not formalize their custody arrangements in a court order. Godbout, Parent & Saint-Jacques, “Le meilleur intérêt de l’enfant,” supra note 38 at 174. 46 Art 586 CCQ; Divorce Act, supra note 3, ss 15.1, 16. 47 Biland & Schütz, “Physical Custody,” supra note 36 at 4; see also Godbout, Parent & Saint-Jacques, “Positions Taken by Judges,” supra note 39 at 272-3; Godbout, Parent & Saint-Jacques, “Le meilleur intérêt de l’enfant,” supra note 38 at 174. 48 Émilie Biland & Gabrielle Schütz, “Tels pères, telles mères? La production des déviances parentales par la justice familiale québécoiseˮ (2014) 97:4 Genèses 26 at 2 -9, n 4. 49 Parents are increasingly being strongly encouraged to resolve their dispute through mediation. For example, parents wishing to be heard by a judge to resolve a custody dispute are legally required to attend a “parenting after separation” information session. According to the Ministry of Justice, 84 percent of couples who use mediation are able to come to an agreement. See Justice Québec, “Family Mediation: Negotiating a Fair Agreement” (Québec City: Government of Québec, 2017), online: 154 WORKING TIME AND FAMILY LIFE VOL. 14 criterion and will be determined by looking at a series of factors, most importantly parental ability and availability, the stability of the child, the proximity of the parents’ residences, the age and the preference of the child (if applicable), the parents’ capacity to minimally communicate with each other, and comparable values and parenting approaches.50 Parental availability is therefore an important factor that will be examined when determining which parent should be awarded custody.51 The study mentioned earlier on the role of lawyers in reaching custody arrangements without a judgment (for example, through mediation or judicial certification of an out-of-court agreement) also confirms the importance of availability with respect to professional obligations as a key factor in the negotiation of fathers’ custody rights.52 It is thus important to know what availability entails in this context. Michel Tétrault describes it in the following terms: Availability is understood as the time during which a parent can be physically and psychologically present for his or her child, in the environment where the child is living. It is not appropriate to award time to a parent who works during this period, but to the parent who is the most available in accordance with the needs of the child. In evaluating the “future” availability of a parent, the case law at least has determined that the past is often a guarantee of the future, and that a parent’s availability must ensure stability for the child and must not be temporary. Availability must allow each parent to fully exercise his or her parental authority for the periods that the child is with him or her.53 and-families/separation-and-divorce/family-mediation-negotiating-a-fair-agreement/>; see also Code of Civil Procedure, RSQ c C-25.01, ss 417-24. 50 Droit de la famille - 16261, 2016 QCCA 224 at para 8; Droit de la famille - 091541, 2009 QCCA 1268 at para 67. 51 Droit de la famille - 132210, 2013 QCCA 1398 at para 16; Valérie Laberge, “L’interprétation du meilleur intérêt de l’enfant dans les litiges de garde” (2013) 72 Revue du Barreau 65 at 88-92, online: When both parents have comparable parental abilities, their availability can tip the balance in their favour.54 This availability must be real and of “good quality” for shared or exclusive custody to be awarded.55 For instance, in the case of a farmer who had exclusive custody, the Québec Court of Appeal determined that being in the same vicinity as his five-year-old daughter on the farm while he worked (milking the cows early in the morning and in the evenings and so on) did not constitute adequate availability even though he could communicate with her using a walkie-talkie-style child monitor. Exclusive custody had been ordered when the father’s parents still lived on the farm, which was no longer the case. According to the court, availability entails being present for the important moments of the child’s day: [We] [the Court of Appeal] are of the view that the trial judge made a palpable error by giving exclusive custody to the respondent [the father]. He should have given it to the appellant [the mother] since, given her work schedule, she has the required availability to be present when the child wakes up, gets dressed, gets ready for her day and also to be there when she gets back from school. On the contrary, because of his work schedule the respondent cannot offer his daughter the daily supervision and care she needs before she leaves for school and when she comes back from school.56 While this rather extreme case does not concern an “employee” covered by labour legislation, it does provide some guidance as to the type of availability required in shared custody cases. 54 Droit de la famille - 161813, 2016 QCCS 3519, aff’d Droit de la famille - 17396, 2017 QCCA 353 (both parents had good parental abilities, but since they lived in two remote towns, the custody was entrusted to the mother who was not working and therefore had a high availability to offer the child). See also e.g. Droit de la famille - 17265, 2017 QCCS 517, appeal as of right to the Court of Appeal (in an ideal world, the judge would have granted shared custody of the two children, but the parents lived too far apart. For the stability of the children and because the mother was more available, the custody was entrusted to her); Droit de la famille - 101273, 2010 QCCS 2405, aff’d Droit de la famille - 102904, 2010 QCCA 1987 (the parental abilities of both parents were established, but the custody was entrusted to the mother, notably because the father, who was a real estate broker, worked all hours of the day during the week and on weekends). 55 Droit de la famille - 131013, 2013 QCCA 711 at para 10. 56 Droit de la famille - 101922, 2010 QCCA 1440 at para 26 [translated by authors]. 156 WORKING TIME AND FAMILY LIFE VOL. 14 In another case, the Superior Court made it clear that irregular and unpredictable work schedules do not favour shared custody: The evidence shows [that the father’s previous work schedule] seriously affected his availability and that in the future [his] availability on Monday and Tuesday mornings will be problematic. He does in fact have to leave for work around 6:30 am. He probably will not be present for the children’s breakfast and for getting them ready for school. ... In addition, ... he has confirmed that the terms of his employment are going to be reevaluated. In consequence, his overall availability every morning and evening during the week in the short, medium and long terms is uncertain. Especially as ... his sister does not intend to participate in looking after the children as she has done in the past. ... As for Madame [the mother], the unrefuted evidence confirms her availability to look after her children. The maternal grandmother also lives [in the same city]. In matters concerning parents’ availability, between choosing a certain situation and an uncertain situation, the best interest of the children commands that a certain situation must be favoured; in the short, medium and long terms this certainty with respect to availability lies with Madame.57 This last case emphasizes the need for the availability to be predictable. Having to frequently call upon third parties to look after children is generally treated as an indicator of insufficient availability.58 The case law has thus determined that the availability must be the parent’s and not, for example, the parent’s new spouse’s.59 For instance, in one case, when a father’s shift was changed from days to evenings (from 3 pm to 11 pm) and the mother was available to look after the children, the judge ended a shared custody arrangement, even if the father’s new spouse was available to look after the children in the evenings.60 57 Droit de la famille - 15999, 2015 QCCS 1967 at paras 166-7, 169-70 [translated by authors]. 58 Droit de la famille - 132210, supra note 51 at para 17, citing Droit de la famille — 678, [1990] RDF 395. 59 Droit de la famille - 101922, supra note 56 at para 2; Droit de la famille - 123210, 2012 QCCS 5764 at para 45. Courts have however accepted that other family members, such as grandparents and aunts compensate for a parent’s lack of availability. See e.g. Droit de la famille - 15999, 2015 QCCS 1967. 60 NF v GL, 2003 CanLII 33370 (QCCS), aff’d L (G) v F (N), 2004 CanLII 14904 (QCCA). VOL. 14 JOURNAL OF LAW & EQUALITY 157 When working parents can demonstrate that to some extent they can compensate for their atypical or irregular work schedule, shared custody may be granted. This was confirmed in a 2013 Québec Court of Appeal case: As we can see, a large number of [the father]’s work periods appear to be in conflict with the periods in which he has custody. On 28 days of the 56 days when the [father] has the child with him, ... twelve do in effect seem to be problematic. ... [The mother’s] grievances in this respect seem to be justified. I, however, note [that by adjusting the days on which the father has custody there would be a third less problematic days]. ... This solution addresses part of the [mother]’s concerns. That leaves Wednesdays and Thursdays. [The trial judge] was very conscious of the difficulties caused by the [father]’s atypical schedule, but he concluded that this was not a serious objection to him looking after the child on these days. ... In other words, when the [father] works on these Wednesdays and Thursdays, he seems to be in a position to change his schedule to adapt it to the operating hours of the facilities where the child will be, to use accumulated vacation days and to count on his mother [to help him].61 Although, in this case, the father’s schedule was atypical, which had created problems with the custody arrangement, according to the evidence presented, his employment situation (he was a federal border services agent) gave him sufficient leeway to be able to organize his shifts and hours of work when needed.62 This contrasts with the situation described above where the father appeared to have little idea of what his future working hours would be. The court also mentioned that the mother did not work and, therefore, had considerable availability, but it reminded her that she would eventually have to go back to work and should not be acting as a babysitter on the weekends when the father worked.63 61 Droit de la famille - 132210, supra note 51 at paras 22-6 [translated by authors]. 62 See also e.g. Droit de la famille - 163189, 2016 QCCS 6414 at para 43 (the father was working during the nights, but he testified that he had enough seniority to get day shifts if it was necessary to obtain shared custody of his young daughter). 63 Droit de la famille - 132210, supra note 51 at paras 19, 28. 158 WORKING TIME AND FAMILY LIFE VOL. 14 In another judgment, however, where the mother sought to modify a shared custody arrangement to every other week, the court maintained the “atypical shared custody arrangement” based on the atypical work schedule of the father,64 who, over a period of three weeks, had seven consecutive days’ leave, five evening shifts, two days’ leave, and then seven day shifts: The Court is aware that the [mother] has some disadvantages, that the change she requires would allow her to better plan her time, ... in short it would make life easier for her. Unfortunately, the Court is of the view that all these inconveniences and irritants must give way to the limited availability of the [father] in order to enable him to spend quality time with his daughters.65 The father testified that he had unsuccessfully tried to obtain a regular schedule,66 with the result that, in the end, his lack of control over his working time negatively affected the mother’s control over her time. The ability of working parents to organize their working time depends on individually and collectively negotiated norms and arrangements since the legislative framework confirms management’s right to control working time. As we illustrate next, labour tribunals appear to show little sympathy towards parents in shared custody arrangements. IV. BETWEEN A ROCK AND A HARD PLACE: THE MODERN FAMILY MEETS THE NOT-SO-MODERN WORKPLACE While Québec is often touted as being avant-garde in its approach to parental leave and work-family balance,67 a closer look at the province’s laws and policy shows that, while paid parental leave is more generous and affordable childcare is more accessible than elsewhere in Canada, labour legislation has not yet been adapted to contemporary working parents’ situations, especially with regard to working time. In addition, contrary to 64 Droit de la famille - 162316, 2016 QCCS 4459 at para 10. 65 Ibid at paras 43-4 [translated by authors]. 66 Ibid at para 38. 67 See Diane-Gabrielle Tremblay, Andrea Doucet & Lindsay McKay, ‘“Le congé parental et la politique familiale au Québec: une innovation sociale du monde francophone dans la mer anglophone de l’Amérique du Nord,ˮ Les Cahiers du CRISES, Collection Études théoriques, Doc ET1501 (January 2015), online: the situation that prevails in all other Canadian jurisdictions, 68 the Québec Court of Appeal has determined that employers have no duty to accommodate workers based on their family “status” (or “situation”) under human rights legislation.69 Although this right is circumscribed elsewhere in Canada and under federal jurisdiction by the case law, and, among other things, requires that employees take measures to find alternative solutions, employers do have the duty to adjust working time arrangements to employees’ family situations if they meet the criteria developed by the case law. 70 This accommodation can be temporary or permanent and encompasses the obligation to provide a schedule that is compatible with “routine” childcare responsibilities. In the absence of collectively or individually negotiated norms that increase employees’ control over their working time, management rights in this respect are only bounded by minimal restrictions in the Québec Act Respecting Labour Standards. 71 There is no maximum workweek in 68 Canadian Human Rights Act, RSC 1985, c H-6, ss 3(1), 7; Human Rights Code, RSBC 1996, c 210, s 13; Alberta Human Rights Act, RSA 2000, c A-25.5, s 7(1); Saskatchewan Human Rights Code, SS 1979, c S-24.1, ss 2(1)(m.01)(iv), 16; Human Rights Code, SM 1987-88, c 45, s 9(2)(i); Human Rights Code, RSO 1990, c H.19, s 5; Human Rights Act, RSNS 1989, c 214, s 5(1)(d), (r); Human Rights Act, RSPEI 1988, c H-12, ss 1(1)(d), 6(1)a); Human Rights Act, 2010, SNL 2010, c H-13.1, ss 9(1), 14; Human Rights Act, RSY 2002, c 116, ss 7(k), 9(b); Human Rights Act, SNWT 2002, c 18, ss 5(1), 7(1); Human Rights Act, SNu 2003, c 12, ss 7(1), 9(1). New Brunswick very recently amended its legislation to include “family status” as a prohibited ground of discrimination. See Bill 51, An Act to Amend the Human Rights Act, New Brunswick, 2017, c 24, s 2.1; see also British Columbia Law Institute, “Human Rights and Family Responsibilities: Family Status Discrimination under Human Rights Law in British Columbia and Canada,” BCLI Study Paper No 5 (September 2012), online: 160 WORKING TIME AND FAMILY LIFE VOL. 14 Québec, although employees can refuse to continue working once they have worked fifty hours.72 But there is no general right to refuse to work overtime. Employees are also entitled to a weekly minimum rest period of thirty-two hours, which can fall any time during the week. There is no maximum workday, although employees can refuse to work after having worked fourteen hours in a day (twelve hours if they have irregular schedules) or after having worked four hours beyond their normal workday. Employers are not required to post schedules in advance (or at all) or advise workers of schedule changes. Nor must they guarantee a certain number of hours of work per week, leaving workers in a position where they may be likely to accept all available hours for economic reasons, even if the hours conflict with family responsibilities. There are no restrictions on broken shifts, night shifts, or weekend shifts or on the requirement to be available on call or to respond to employers’ requests outside of scheduled work hours when at home. Minimum employment standards legislation in Québec also protects management rights by allowing employers to decide if employees have to work on legal holidays as well as when they can take their vacation.73 It can thus be very difficult for workers to coordinate work obligations with family time. This situation is compounded in shared parenting situations. Some family situations beyond maternity and parental leave were timidly taken into account with amendments to the Act Respecting Labour Standards introduced in 1990, which were further modified and arguably improved in 2002.74 But these more recent legal provisions essentially apply to unavoidable family responsibilities. As with the working time and holiday provisions, these provisions do not fully recognize that employers have a role to play to reduce the interference of work in family life. Employees are protected against reprisals if they refuse to work beyond their normal work be able to refuse to work after having worked two hours instead of four beyond their normal workday. They will also, in most cases, be able to refuse to work if their employer has not notified them five days ahead of time. This new provision does not constitute an obligation for employers to inform employees of their schedules; it only provides employees with protection against reprisals if they refuse to work (see s 9). 72 Landry c Matériaux à bas prix ltée, 2004 QCCRT 553 at paras 20-7. 73 With the exception of the Saint-Jean Baptiste holiday, an employer can require that the employee work and take a compensatory holiday in the three weeks before or after the legal holiday. Employees only have the right to know the date of their vacation one month beforehand. See Labour Standards Act, supra note 8 ss 60, 63, 64, 72; National Holiday Act, CQLR, c F-1.1, s 2. 74 An Act to Amend the Act Respecting Labour Standards and Other Legislative Provisions, SQ 1990, c 73; An Act to Amend the Act Respecting Labour Standards and Other Legislative Provisions, SQ 2002, c. 80. Some improvements were also introduced by Bill 176, such as the lengthening of some of the existing family leave and the extension of the list of people who can be considered family care providers. See Bill 176, supra note 71, s-32. VOL. 14 JOURNAL OF LAW & EQUALITY 161 hours because their presence is required to fulfill obligations relating to the care, health, or education of their child or their spouse’s child.75 They will nevertheless have to demonstrate that they have taken reasonable steps to find an alternative solution to refusing to work.76 There is thus no general right to refuse overtime for family reasons beyond protection against reprisals if an employee has found no alternative solution.77 The Act Respecting Labour Standards also provides for a total of ten days of unpaid leave per year, which can be split into half-days (or into hours with the employer’s consent) for employees to fulfill obligations relating to the care, health, or education of a child.78 Again, employees will have to demonstrate that reasonable steps were taken to limit the leave and its duration. This last provision also fails to take into account the routine responsibilities of parenting and again reflects a lack of recognition that workers are very often parents since the burden of proof is on the employee to show that he or she could not make alternate arrangements.79 The Act also perpetuates the “dual-partnered nuclear working family” and fails to take into account the heterogeneity of family situations, such as the existence of working grandparents or siblings who have childcare responsibilities.80 In a grievance alleging a failure to accommodate an employee in a work-family conflict situation, an arbitrator clearly stated that the goal of the provision enabling workers to use ten days a year for family responsibilities is not to accommodate shared parenting arrangements.81 75 Labour Standards Act, supra note 8, s 122(6). 76 Lussier c Syndicat des cols bleus regroupés de Montréal (SCFP, 301), 2010 QCCRT 462 at para 32. 77 Ibid. 78 Labour Standards Act, supra note 8, s 79.7. Bill 176, supra note 71, provides for two of the ten days to be paid for employees with three months of service for the same employer as of January 1 2019. 79 Ibid, s 79.8ff. Employees can also take up to twelve weeks of unpaid leave per year in the case of the grave illness of a child if they can demonstrate that their presence with the child is necessary. Unpaid leave with guaranteed job security can also be extended in some cases to 52 or 104 weeks. 80 Michelle Weldon-Johns, “From Modern Workplaces to Modern Families: Re- envisioning the Work-Family Conflictˮ (2015) 37:4 J Soc Welfare & Fam L 395. In the future, this may be partially remedied with the extension by Bill 176, supra note 71, of the list of people who can be considered family care providers. 81 Université de Montréal et Syndicat des employés d'entretien de l'Université de Montréal, section locale 1186, SCFP — FTQ (Fernand Landry), 2014 QCTA 685 at para 58 [Université de Montréal]; see also Bouchard v 9180-6166 Québec Inc (Honda de la Capitale), 2015 QCCRT 31. This last case did not concern a shared custody arrangement, but the Labour Relations Board came to the same conclusion on the use of the provision to organize more complicated childcare arrangements (the 162 WORKING TIME AND FAMILY LIFE VOL. 14 The complainant worked for the security service of a university and asked his employer to arrange his work schedule to take into account the fact that he had custody of his child every other week. When the employer refused, the complainant used some of his personal days and then tried, without success, to use his accumulated overtime to render his schedule more flexible when he had his daughter. While the grievance concerned a claim of psychological harassment and discrimination on the basis of his family status (which is not protected under Québec human rights legislation), the arbitrator did interpret the legal provisions on the right to ten days of leave per year for family obligations. According to the arbitrator, [I]t seems evident that the ... provision’s objective is not to permit the establishment of an adjusted schedule on a regular basis. Rather, it is a provision that allows the employee to cope with occasional situations relating to a child’s care, health, education, etc. ... It is not enough to argue having custody of a child every two weeks to be able to take advantage of [the provision]. ... The employer cannot accept the complainant’s demands to be able to be absent at the beginning of his shifts. ... This is the only demand that he has made in order to find a solution for the shared custody of his daughter one week out of two. He has made no other serious effort, nor taken any other serious steps. ... He did not explore any other alternative solution generally used in our society ... to look after his daughter other than occasionally calling upon his parents. [It is our opinion] that this attitude is far from being the taking of reasonable steps to limit leave for family reasons. ... [T]he general impression that emerges is that [the complainant] ... tried to do indirectly what he was denied, that is, be granted ... an adjusted schedule.82 Here it is clear that the arbitrator did not find that the legislative intent was to diminish the interference of work in family life. The decision confirms that the onus is entirely on the employee to demonstrate that she or he has exhausted reasonable alternatives and that the employer is not required to accept requests that involve regular and routine family responsibilities. complainant’s spouse was frequently absent, and she had to work several evenings a week and was therefore not available for her children). 82 Université de Montréal, supra note 81 at paras 58, 64-5 [translated by authors]. VOL. 14 JOURNAL OF LAW & EQUALITY 163 Thus, there is no obligation on the employer’s part to be proactive in helping the employee find a solution. In an earlier 2010 Québec Labour Relations Board decision, a provincial correctional officer refused to stay in his post after the end of his shift at 4 pm as ordered by his superior to ensure that the regulatory minimum number of officers was present on the floor.83 He received a written notice and two suspensions after refusing to stay past his normal working hours. The complainant had the custody of his nine- and eleven- year-old children, who attended a school over 40 kilometres from their home.84 He was not from the region and had no family that could assist him to make sure his children got home safely from school and were looked after. The school after-hours childcare service closed at 6 pm. Although his superior did offer to let him go and get his children before the service closed, there was no one at home to look after them. He admitted that at the time he had not made an effort to find someone else to look after his children, although he did in part solve the problem by moving to the municipality where his children went to school two months later. The law states that the complainant had to demonstrate that he had taken reasonable steps to find an alternative solution to refusing to work beyond his usual shift. The Labour Relations Board found that he had failed to do so and that management’s right to require him to work overrode his parental responsibilities: For an employee to be able to legally refuse to work beyond his normal working hours, despite being required to work, he must have taken reasonable means to fulfil his parental obligations in another way. Even if this is an obligation of means and not of results, he must undertake the reasonable steps available, in accordance with the circumstances. ... He cannot purely and simply refuse to work beyond his normal working hours by hiding behind his parental responsibilities without trying to find a solution.85 This case brings to the fore the inadequacy of existing legal provisions in taking into account the difficult situations in which parents find themselves when trying to fulfill routine parental responsibilities as well as the 83 Perras v Québec (Ministère de la Sécurité publique), 2010 QCCRT 19, application for review denied, 2010 QCCRT 268 [Perras]. 84 The facts of the case do not specify whether or not this was a shared custody arrangement. 85 Perras, supra note 83 at para 20; see also paras 21-3 [translated by authors]. 164 WORKING TIME AND FAMILY LIFE VOL. 14 resistance of labour tribunals to being sympathetic to workers who experience work-family conflict. In another case from 2008, the employee of an industrial cleaning company was in a shared custody arrangement in which he had his young daughter every other week.86 At first, he managed to organize his work and family time, but the person he had hired to look after his daughter during his evening and night shifts moved, and he was left without childcare. He tried to find another person to look after his daughter but, finally, had to ask his employer to not give him night shifts. The employer maintained that, according to the collective agreement, the employee had to be available to work evenings, nights, and on call. Employees were frequently informed of a shift only one hour in advance in order to respond to the needs of the company’s principal client. After having refused to work night shifts, and although the employer confirmed that he was otherwise a good employee, he received several disciplinary notices and was ultimately fired because of his lack of availability. The employer claimed that it would not be fair to make an exception for him under the collective agreement and give him the shift he needed every other week since all of the employees had to be available twenty-four hours a day, seven days a week. The union argued that the employer had a duty to accommodate the employee under the Act Respecting Labour Standards and the Québec Charter of Human Rights and Freedoms and had not demonstrated that it would experience undue hardship if a schedule accommodation was found.87 The arbitrator finally substituted the dismissal by a six-month suspension to give him a “last chance.” Even though the arbitrator accepted that the employee’s reason for not being sufficiently available was “serious and commendable,” he stated “the cause of his absences, shared custody of his minor child, is the result of the grievor’s choice and is not outside of his control.”88 Therefore, “the grievor must fulfil his principal duty as an employee and perform his work. The employer is within its right to demand that the grievor be available to work.”89 The arbitrator also found that the employer had correctly applied the collective agreement and that the minimum conditions provided for in the Act Respecting Labour Standards—a law of public order—had also been respected.90 He underlined that being in a shared custody arrangement was 86 Syndicat des travailleurs d'Environnement Godin (CSN) c Environnement Godin Inc, 2008 CanLII 7003 (QC SAT) [Environnement Godin]. 87 Charter of Human Rights and Freedoms, 1976, C-12, ss 10, 16, 20. 88 Environnement Godin, supra note 86 at paras 54, 60. 89 Ibid at para 61 [translated by authors]. 90 Standards of “public order” are imperative standards of public policy from which a contract cannot derogate. See arts 8, 9 CCQ. The Act Respecting Labour Standards provides that “any provision that contravenes a labour standard or that is inferior thereto is absolutely null.” See Labour Standards Act, supra note 8, s 93. VOL. 14 JOURNAL OF LAW & EQUALITY 165 not protected as a prohibited ground of discrimination under Québec’s Charter of Human Rights and Freedoms. According to the arbitrator, “[u]nder the present state of the law, unless otherwise agreed upon, the notion of work-family balance does not go so far as to oblige an employer to accept an employee’s request to work one out of two weeks in a post that requires availability to be on call, in particular evenings and nights.”91 In this case, despite the fact that the employee had his union’s support, the employer was able to invoke the collective agreement to justify its lack of flexibility in finding a solution to lessen the employee’s work-family conflict. The arbitrator determined that the grievor had made a personal choice to be in a shared custody arrangement and that it was up to him to organize his life outside of work to be able to meet his parental responsibilities and not up to the employer to find him a suitable working- time arrangement. V. NEVER THE TWAIN SHALL MEET? SOME REFLECTIONS ON THE INTERSECTION OF LABOUR AND FAMILY LAW The question we initially wanted to explore was whether labour and family law intersect and interact to see if we can discern a dialogue between the two. The case law illustrations presented here do not seem to indicate such a dialogue; the two branches of law appear to be talking past each other on the questions of availability and working-time arrangements. On the one hand, family case law demands of a parent who has custody that he or she be available and personally able to look after his or her children. In the family case law illustrations presented above, the real constraints and limitations imposed by labour law on working parents are barely considered. On the other hand, the existing weak labour law provisions examined in this article do not take into account the requirements of family law and appear to contradict them, since it is implied that employees have to find a solution so as not to have to be available for their children. In the labour case law illustrations, tribunals ignore the requirements of family law and give precedence to management rights, squarely relegating family responsibilities to the private sphere. The family case law illustrations that have been discussed concern situations where fathers are requesting shared custody, which is increasingly the norm. While the illustrations are but a sample of a large corpus of judgments, courts still appear to expect mothers to be more available for their children and presume that when a father cannot organize a “family-friendly” working arrangement, the mother will be able to adapt. 91 Environnement Godin, supra note 86 at para 51 [translated by authors]. 166 WORKING TIME AND FAMILY LIFE VOL. 14 As such, the courts either deny the father shared custody92 or minimize the impact that the father’s difficult schedule may have on the mother’s time management.93 The implicit message is that responsibility for children is still essentially the remit of women.94 While case law is only the tip of the iceberg since the vast majority of cases are settled out of court, it is perhaps significant that the reported labour law cases often involve men who are grappling with shared custody arrangements. The labour case law illustrations concern fathers who have custody of their children and whose requests for working-time arrangements have been flatly turned down by their employer. As the heavy tendency towards shared custody continues to be confirmed and as working men become more “encumbered” with family responsibilities, a provocative question is whether it will finally be the voice of fathers in shared parenting arrangements that will galvanize tribunals into proposing an interpretation of labour law and collective agreement provisions that recognizes that employees are often also parents and prod the legislature into adopting provisions that oblige employers to consider alternate working time arrangements when employees are faced with work-family conflict. These illustrations from the labour case law tend to show that this is not happening at the moment. However, if this were to be the case one day, it raises questions about gender neutrality and bias in law; with the prevalence of the dual-earner household today, women have been expected, up to now, to figure out how to reconcile work and family life. It is evident that family law has evolved to encourage fathers to share more fully in parenting responsibilities in the best interest of children. Yet, despite improvements in family leave, government discourse on the need for better work-family balance policies,95 initiatives on voluntary work- family balance standards,96 and decades of representations by women’s 92 See note 54 above. 93 See Droit de la famille - 162316, supra note 64 and text accompanying note 66. 94 See in particular Judy Fudge, “Working-Time Regimes, Flexibility, and Work-Life Balance: Gender Equality and Families” in Catherine Krull & Justyna Sempruch, eds, Demystifying the Family/Work Conflict: Challenges and Possibilities (Vancouver: UBC Press, 2011) 170, online: organizations and other actors to enable women not to be hindered professionally by their family responsibilities,97 labour law has still not lowered the principal barrier to reconciling work and family responsibilities: control over working time. This is particularly problematic for more precarious workers with few economic resources to pay for childcare services and little or no time sovereignty since studies show that they experience more work-family conflict.98 It can be gleaned from the case law that more precarious workers may be at a disadvantage when it comes to proving their availability in the family law forum. The worker who has a very unpredictable schedule, through no fault of his or her own, may be less likely to obtain shared custody than a worker who is in a position to mobilize different strategies and rights in the workplace to arrive at a satisfactory working-time arrangement. 99 In this instance, labour law can have a potentially negative effect on the exercise of parental rights. Not only is there a lack of dialogue between family and labour law, but the disparities that are maintained by labour law in the treatment of workers are also possibly being reproduced in the family law forum. VI. FURTHERING THE REFLECTION ON THE NEXUS BETWEEN LABOUR AND FAMILY LAW This article has modestly tried to open a discussion on the apparent lack of dialogue between two branches of law that directly affect a great many people’s lives on an ongoing basis. We are fully aware that it is hazardous to draw firm conclusions from case law illustrations. The case law most often represents the most difficult cases since the vast majority of disputes in both family and labour law do not end up before the courts, and, if they do, they are often settled before finally coming to adjudication. From a methodological perspective, several reasons make it difficult to claim an exhaustive case law search: mention of availability issues may be termed in many ways by adjudicators and very creative full-text word searches are 97 More recently, in January 2016, a broad coalition of Québec unions, women’s organizations, and organizations representing families launched a comprehensive political platform to engage discussion on concrete means to reduce work-family conflict. See Coalition pour la conciliation famille-travail-études, Plateforme politique pour faire face aux nouveaux défis (January 2016), online 168 WORKING TIME AND FAMILY LIFE VOL. 14 required, leading inevitably to omitting some cases; indexation and case abstracts often do not mention this issue; and while the case law is very voluminous, particularly in family law, not all cases are reported. It should also be noted that many workers do not mobilize their rights outside of the workplace to seek third party intervention in a dispute, and may or may not manage to reach arrangements with their employers. At the same time, several of the case law illustrations above suggest that there should be further exploration of adjudicators’ discourses in both family and labour law to verify whether there is a discernable gendered appreciation of men’s and women’s availability both at work and for family responsibilities. Given the limitations of case law research, we hope to further inform our exploratory legal research through qualitative data from interviews with different actors, particularly with workers with variable or asocial work schedules in shared custody arrangements. In the interim, we can tentatively advance that labour law will not be able to continue to perpetuate the family life/work divide for much longer and will have to take into consideration developments in family law and the evolution of family structures. Feminism, Federalism and Families: Canada’s Mixed Social Policy Architecture Kate Bezanson ABSTRACT In 2018, with a self-declared feminist prime minister, a federal commitment to gender-based budget analysis, and a Cabinet composed of ministers who are 50 percent women, Canada’s social policy architecture is being transformed. This transformation is taking place alongside the rise of a reactionary conservative populism abroad and on the heels of almost a decade of federal Conservative social policy based on “family- values” in Canada. Despite its comparatively progressive character, Canada’s social policy architecture remains nested in a liberal welfare state model, with potentially deleterious outcomes especially for mothers, lower income, and racialized women. Further, populist discourses around families, and the social and tax policies associated with them, remain popular among many voters. Such approaches are often regressive and may entrench inequalities, yet they continue to flavour some of Canada’s policies related to families. This article explores some of the consequences of Canada’s family policy incoherence. It examines key federal family- related policies over the last decade, including the Liberal government’s recent extension of parental leaves to eighteen months, its income-based targeting of childcare spending, and its 2018 Gender Equality Budget. This exploration: (1) offers a dynamic theoretical framework for understanding gender in relation to law and social policy; (2) considers why families and federalism are complex political and policy terrain; (3) catalogues Canada’s mixed family policy architecture; and (4) recommends that a feminist future in Canadian social policy will require deviation from the current trajectory to include recalibration of parental leaves and an orientation to childcare as a public good. Associate Professor and Chair in the Department of Sociology at Brock University, St. Catharines. She is also a part-time candidate in the Master’s of Law program in Constitutional Law at Osgoode Hall, York University, North York. The author wishes to thank Andrea Doucet, Keith Bezanson, Elizabeth Shilton, Denise Réaume, and the Journal of Law & Equality editorial team. As this article was going to press, Budget 2018 was presented to the House of Commons. An analysis of it—and its implications— forms the post-script to this article. 170 FEMINISM, FEDERALISM AND FAMILIES VOL. 14 I. INTRODUCTION In 2018, with a self-declared feminist prime minister, a federal commitment to gender-based budget analysis, and a Cabinet composed of ministers who are 50 percent women, Canada’s social policy architecture—particularly, in relation to families—is being transformed. This transformation is taking place alongside the rise of a reactionary conservative populism abroad (particularly following the UK and US elections in 2016) and on the heels of almost a decade of federal “family- values” Conservative social policy in Canada. Assessing Canada’s family policy trajectory, then, requires context and historical perspective. Despite its comparatively progressive character, Canada’s social policy architecture still remains nested in a liberal welfare state model, with potentially deleterious outcomes especially for mothers, lower income, and racialized women. 1 Further, the broad resonance of populist discourses around families, and the social and tax policies associated with them, remain popular among many voters. Such approaches are often regressive and may entrench inequalities, yet they continue to flavour some of Canada’s policies related to families, even those with overt equity aims. To explore the consequences of Canada’s family policy incoherence, I offer a genealogy of key federal family-related policies in Canada over the last decade, culminating with a discussion of the potential, and dangers, of the Liberal government’s extension of employment insurance-funded parental leaves to eighteen months and its income-based targeting of childcare spending. This genealogy serves several purposes: first, it offers a dynamic theoretical framework for understanding gender in relation to law and social policy; second, it considers why families and federalism are complex political and policy terrain; third, it catalogues Canada’s mixed family policy architecture; finally, it recommends that a feminist future in 1 See e.g. Rianne Mahon, Christina Bergqvist & Deborah Brennan, “Social Policy Change: Work-Family Tensions in Sweden, Australia and Canada” (2016) 2 Social Policy and Administration 165; Hadas Mandel, “Configurations of Gender Inequality: The Consequences of Ideology and Public Policy” (2009) 60:4 British Journal of Sociology 693; Hadas Mandel, “Rethinking the Paradox: Tradeoffs in Work-Family Policy and Patterns of Gender Inequality” (2011) 14:2 Community, Work and Family 159; Ann Orloff, “Gendering the Comparative Analysis of Welfare States: An Unfinished Agenda” (2009) 27:3 Sociological Theory 317; Mary Daly, “What Adult Worker Model? A Critical Look at Recent Social Policy Reform in Europe from a Gender and Family Perspective” in Christopher Pierson, Fracis G Castle & Ingela K Naumann, eds, The Welfare State Reader, 3rd ed (Malden, MA: Polity Press, 2014) 348; Mary Daly & Kirsten Scheiwe, “Individualisation and Personal Obligations: Social Policy, Family Policy, and Law Reform in Germany and the UK” (2010) 24:2 Intl JL, Pol’y & Fam 177. VOL. 14 JOURNAL OF LAW & EQUALITY 171 Canadian social policy will require deviation from the current policy trajectory to include recalibration of parental leaves and an orientation to childcare as a public good. II. SOCIAL REPRODUCTION, LAW, AND SOCIAL POLICY: A THEORETICAL LENS The concept of social reproduction, developed by feminist political economists, offers an important theoretical lens to social policy and law. With intellectual origins in the early modern political economic thought of John Stuart Mill, the concept’s roots grew in Karl Marx’s and Friedrich Engels’s work on the dynamics of capital accumulation, were deepened in feminist engagements with the domestic labour debates in the 1970s and 1980s, and theorized more fully in the 1990s and 2000s by feminist political economists working across disciplines.2 At the broadest level, social reproduction refers to the daily and generational work that is needed in any society to ensure social, cultural, and economic survival.3 This reproduction varies historically and culturally but, invariably, “involves putting together the necessities of life, including shelter, food, culture, intimacy, affection, socialization and security, among others.” 4 Sometimes referred to as “care,” social reproduction is conceptually complex. It operates at the micro (individual or household), meso (states, firms, markets), and macro (economy, international relations) 2 Some of the terminological confusion around the concept of social reproduction stems from the transdisciplinary engagement with the concept. Feminist legal scholars, sociologists, geographers, philosophers, political scientists, and economists have engaged significantly with the concept. A sampling of the breadth of engagement can be found, e.g., in Nancy Fraser, “Contradictions of Capital and Care” (2016) 100 New Left Review 99; Kate Bezanson, “Return of the Nightwatchman State? Federalism, Social Reproduction and Social Reproduction in Conservative Canada” in Katie Meehan & Kendra Strauss, eds, Precarious Worlds: Contested Geographies of Social Reproduction (Athens: University of Georgia Press, 2015) 25 [Bezanson, “Return of the Nightwatchman State”]; Isabella Bakker, “Social Reproduction and the Constitution of a Gendered Political Economy” (2007) 12:4 New Political Economy 541; Shirin M Rai & Georgina Waylen, eds, New Frontiers in Feminist Political Economy (Abingdon, UK: Routledge, 2014); Diane Elson, “Economic Crises from the 1980s to the 2010s: A Gender Analysis” in Rai & Waylen, ibid, 189. 3 Kate Bezanson, “Mad Men Social Policy: Families, Social Reproduction, and Childcare in a Conservative Canada” in Rachel Langford, Susan Prentice & Patrizia Albanese, eds, Caring for Children: Social Movements and Public Policy in Canada (Vancouver: UBC Press, 2017) 19 [Bezanson, “Mad Men Social Policy”]; Antonella Picchio, Social Reproduction: The Political Economy of the Labour Market (Cambridge, UK: Cambridge University Press, 1992) at 1. 4 Kate Bezanson, “Caring Society v Canada: Neoliberalism, Social Reproduction, and Indigenous Child Welfare” (2018) 28:1 J L & Soc Pol’y 167 [Bezanson, “Caring Society”]. 172 FEMINISM, FEDERALISM AND FAMILIES VOL. 14 levels5 and refers to both processes (for example, it reflects class, gender, and race relations in a particular period and economic system) and specific tasks (cleaning, bathing a dependent other, or preparing food).6 Social reproduction is dynamic—that is, it exists both in relation to (and usually in conflict with) economic systems, and it is adaptable, transferring and shifting responsibility for its tasks and (de)stabilizing its processes in accordance with historical, political, and social changes.7 In capitalist economic systems, the work of social reproduction is often classed, gendered, and racialized; this reflects the fact that its labours, whether paid or unpaid, are almost always performed by those in structurally unequal social and economic positions. Capital, and, in particular, its neo-liberal variant, does not care who undertakes the labours that create, sustain, maintain, reproduce, and socialize workers and norms of employment, but it requires that it be done as cheaply as possible. Pre-existing relations of inequality are thus ready conduits for this work. As I have argued elsewhere, social reproduction involves the day-to-day work of maintaining and reproducing people and their labour power, including creating space for building capacities such as learning, caretaking, and playing. 8 It may be shaped by having to cope with discrimination and racism. It requires the teaching of social norms integral to the activities of an economy. It is bound up with negotiations over power and resources within households, usually between men and women, often characterized by an unequal division of labour and a gender-specific socialization process. It extends beyond individual households to include volunteer work, intra-household care work, and local initiatives about shared social space or services. Social reproduction may rely on income support such as that provided through the welfare state. In short, social reproduction involves the work that 5 Diane Elson, “The Economic, the Political and the Domestic: Businesses, States and Households in the Organisation of Production” (1998) 3:2 New Political Economy 189. 6 Kate Bezanson, Gender, the State and Social Reproduction: Household Insecurity in Neo-Liberal Times (Toronto: University of Toronto Press, 2006) at 25, 32 [Bezanson, Household Insecurity]. 7 RW Connell & James W Messerschmidt, “Hegemonic Masculinity: Rethinking the Concept” (2005) 19:6 Gender & Society 829; Barbara Cameron, “Social Reproduction and Canadian Federalism” in Kate Bezanson & Meg Luxton, eds, Social Reproduction: Feminist Political Economy Challenges Neoliberalism (Montreal and Kingston: McGill-Queen’s University Press, 2006); Bezanson, “Return of the Nightwatchman State,” supra note 2; Tithi Bhattacharya, ed, Social Reproduction Theory: Remapping Class, Recentering Oppression (London: Pluto Press, 2018). 8 Bezanson, Household Insecurity, supra note 6 at 26-7. VOL. 14 JOURNAL OF LAW & EQUALITY 173 must be accomplished in order to ensure that people survive and develop and to ensure that the economic system is perpetuated.9 Since social reproduction is in tension with the aim of profit maximization, it requires mediation, typically by states, families/households, and markets.10 States such as Canada mediate this tension by underwriting certain costs and supports, such as health care. This mediation is also often left to markets to provide for a price, to the third/charity sector, or to families (and generally women) to provide via their own labours.11 Family provision is usually the least expensive way to meet these costs and services and is often reinforced by discourses of obligation and care. Such mediation thus compels the creation and stabilization of class, gender, and racialized orders to undergird and normalize it, and social policy and law are implicated both in the replication of such orders and also in their disruption.12 Understanding the nexus between state, market, family, and charitable sectors as contributors to social reproduction exposes the gendered and other equity dimensions of law and social policy. States thus play a significant role in creating the conditions under which social reproduction takes place.13 They do this in multiple ways, including in how they regulate labour markets and capital and in how they create, comply with, and enforce various legal regimes, including women’s reproductive rights, international financial transactions and immigration. In relation to Canada’s family policy architecture, the federal (and subnational states) frame the conditions of social reproduction via social policy and welfare state entitlements and via the enforcement of obligations within families such as child support. Canada’s complex system of federalism assigns most of the policy work of social reproduction—social assistance, education, labour, the environment, and so on—to provincial and territorial governments; yet federal spending and 9 Ibid. 10 Ibid; Picchio, supra note 3; Bakker, supra note 2. 11 Adrienne Roberts, “Gendered States of Punishment and Welfare: Feminist Political Economy, Primitive Accumulation and the Law” (London: Routledge, 2017); Bezanson, Household Insecurity, supra note 6. 12 Elsewhere, I note that historically in Canada: “These class, gender and racialized orders required mediation and to different extents repression, whether in the form of direct suppression and state violence, in the form of legal structures that denied access to reproductive freedom or in the over-incarceration, denial of services to and/or surveillance of poor or racialized groups. In the case of indigenous peoples in Canada, it took racist expression in, among other things, Residential Schools whose ostensible aim was to resocialize children into white settler culture and to destroy the capacities for social reproduction in communities.” Bezanson, “Caring Society,” supra note 4 at 168. 13 Bezanson, Household Insecurity, supra note 6; Picchio supra note 3. 174 FEMINISM, FEDERALISM AND FAMILIES VOL. 14 program development in certain areas such as health care set frameworks and conditions for building pan-national social security and even identity.14 The work of social reproduction is often not visible, in part because its material inputs are those accounted for in systems of national accounting and policy formation. These inputs might include some combination of wages, rent, income transfers from governments, subsistence, gifts and charity, barter, and transfers and credits such as tax credits or subsidies for childcare provision.15 The transformation of these inputs into outputs of material necessities, emotional and social sustenance, and goods is often achieved through gendered labour. Put more concretely, we tend to recognize the elements of social reproduction when they are absent or broken: a child taken into custody by the state, generational abuse, violence, and incarceration. 16 The architecture of social reproduction, operating at many levels and with different instruments, requires investment; failure to support households/families can create threshold effects on, and depletion of, care economies, often resulting in higher spending in corrections and policing.17 Law and social policy are often called upon to mediate tensions and, at times, crises in care systems and economies. This mediation can be seen, for example, in family law through the enforcement of (often-gendered) family obligations or custody, in employment law through requests for family accommodation or through income replacement schemes such as maternity and parental leaves, and in a range of policy structures related to social assistance (welfare) and health, job protected caregiving leaves, education and childcare, and gender-based violence initiatives. Analyzing family-related policy through a social reproduction lens reveals the material consequences of the institutional practices and ideologies that have characterized the platforms of both progressive and conservative parties. III. FAMILIES AND FEDERALISM Families—in their actual, varied, diverse forms and in the imagined societal ideal of what they could or should be—figure centrally in political 14 Bezanson, “Return of the Nightwatchman State,” supra note 2. 15 Ibid. 16 Bezanson, “Caring Society,” supra note 4. 17 Shirin M Rai & Kate Bedford, “Feminists Theorize International Political Economy” (2010) 36:1 Signs 1; Diane Elson, “Recognize, Reduce, and Redistribute Unpaid Care Work: How to Close the Gender Gap” (2017) 26:2 New Labor Forum 52; Shirin M Rai, Catherine Hoskyns & Dania Thomas, “Depletion” (2014) 16:1 International Feminist Journal of Politics 86; Judy Fudge, “Feminist Reflections on the Scope of Labour Law: Domestic Work, Social Reproduction, and Jurisdiction” (2014) 22:1 Feminist Leg Stud 1. VOL. 14 JOURNAL OF LAW & EQUALITY 175 campaigns and policy platforms. The Harper government (Conservative Party of Canada), which was in power federally in Canada from 2006 to 2015, ran on a platform of “standing up for families.” 18 The Trudeau government (Liberal Party of Canada), which has been in power federally since 2015, anchored its electoral strategy to “growing the middle class,” promising more robust supports for Canadian families. 19 Although disparate, the Conservative vision of a heteronormative traditional family form and the more progressive heterogeneous family forms imagined by the Liberal government share an emphasis in policy terms on mediating the tension between social reproduction and capital accumulation usually via women’s labour. Both governments, with vastly different ideological orientations to equality issues, have pursued family-related policies with at times convergent—and, elaborated further below, potentially deleterious— gendered and other outcomes.20 These convergences in policy consequences stem in part from institutional path dependence—that is, from enacting policies that follow Canada’s historical liberal welfare state policy preference for caring work to be done privately in households and/or paid for in the market.21 These convergences also result from the challenges of 18 Conservative Party of Canada, Stand Up for Canada: Conservative Party of Canada Federal Election Platform, (Ottawa: Conservative Party of Canada, 2006), online: 176 FEMINISM, FEDERALISM AND FAMILIES VOL. 14 developing coordinated family policy among constitutionally prescribed decentralized jurisdictions (federal, provincial/territorial, and Indigenous).22 The architecture of Canadian federalism, in which the majority of social policy delivery is delegated to provinces and territories, is the chief structural reason that Canada has no coherent family policy. 23 In this constitutional arrangement, subnational governments have the “messy, fleshy stuff”24 of “a local, private nature”25 such as health care, housing, childcare, education, social assistance/welfare, labour, and environmental regulation, among others. The inputs into, conditions underlying, and regulation of social reproduction, where taken up by states, are usually, thus, a provincial/territorial responsibility. Provinces/territories, then, can be thought of as “having” women, children, and families because they “have” social services. 26 Yet federalism and policy jurisdictions are permeable, and there is considerable interplay between the federal state and provinces/territories via transfers and funding. 27 Additionally, the federal state administers significant family, child, employment, and childcare tax credits, transfers, and deductions as well as pensions and employment insurance (covering maternity, parental, and caregiver 22 Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, Appendix II, No 5, ss 91, 92. It is important to note here that s 91(24) of the Constitution Act, 1867 gave the federal government social and administrative policy jurisdiction related to Indigenous peoples, while social policy is the purview of subnational governments otherwise. While Crown-Indigenous relations, particularly regarding governance, are undergoing significant revision, particularly in light of the creation of two new federal ministries and a new framework for the recognition and implementation of Indigenous rights, the recent legacies of family policy failures within federal jurisdiction remain unresolved. See Joanne Smith, “Trudeau Pledges ‘Full Recognition and Implementation of Indigenous Rights’,” Huffington Post (14 February 2018), online: VOL. 14 JOURNAL OF LAW & EQUALITY 177 leaves).28 While the confederation compromise of assigning much of the state’s mediation of social reproduction to provinces/territories (though retaining the federal role for Indigenous peoples), the federal government in Canada plays an indispensable part both in setting national standards for policies and in transferring funds and/or sharing aspects of policy governance with subnational governments. 29 The federal state, and its approach to federalism and families, thus contributes to shaping the broad conditions of social reproduction. The vision for federal-provincial/territorial/Indigenous relations has shifted considerably over the last decade, and family-related policies have reflected ideational shifts in federal approaches to federalism. The Harper period was marked by an approach termed “open federalism,” while the Trudeau era appears to be a return to a more collaborative or bilateral federalism. The Harper government embraced a strict watertight- compartments approach to jurisdiction—that is, it adhered to a strict interpretation of federal and provincial constitutional policy responsibilities.30 It sought to centralize “most market-enabling policy capabilities at the federal level,” limiting fiscal room (including via tax cuts) for social policy initiatives.31 This market enabling federalism served 28 Feminist scholars of multi-level governance suggest that having multiple levels of government involved in myriad aspects of social policy is mixed; significant differences in public service level, provision, and access between provinces/territories results in standard of living variances and inequalities across the country, however, experimentation with policy at a provincial level (such as childcare, for example) can serve as models/best practices for policy formulation in other jurisdictions and can provide multiple entry points for equality informed activism. See Marian Sawer, “Gender Equality Architecture: The Intergovernmental Level in Federal Systems” (2014) 73 Australian Journal of Public Administration 361; Gabriele Abels, “Multi- Level Governance: Tailoring a ‘Favourite Coat’ to the Needs of ‘Gender Fashion’” in Gabriele Abels & Heather MacRae, eds, Gendering European Integration Theory (Opladen, Germany: Barbara Budrich, 2016) 99; Haussman, Sawer & Vickers, supra note 26; Fiona Mackay, Meryl Kenny & Louise Chappell, “New Institutionalism through a Gender Lens: Towards a Feminist Institutionalism?” (2010) 31:5 International Political Science Review 573; Louise Chappell & Deborah Brennan “Introduction: Gendering the Intergovernmental Relations Agenda” (2014) 73:3 Australian Journal of Public Administration 357. 29 For an important discussion of social reproduction, constitutionalism, and federalism, see Cameron, supra note 7 at 45. I note here that there is also provincial delegation to municipalities and local governments; see also Tammy Findlay, “Childcare and the Harper Agenda: Transforming Canada’s Social Policy Regime” (2014) 71 Canadian Review of Social Policy 1. 30 Bezanson, “Return of the Nightwatchman State,” supra note 2 at 32. 31 Adam Harmes, “The Political Economy of Open Federalism” (2007) 40:2 Canadian Journal of Political Science 417 at 424. 178 FEMINISM, FEDERALISM AND FAMILIES VOL. 14 to provincialize “market-inhibiting policy capabilities such as labour [market regulations] … and certain forms of … social spending.”32 Put differently, this kind of approach understood most matters of social reproduction as provincial and local, while the federal role was reserved primarily for the military, commerce, and corrections.33 Consequently, open federalism largely located the costs of caregiving in privatized families or in markets to provide for a price and reduced fiscal room for transfers for new or existing social programs. It entrenched provincial/territorial variations in social citizenship including in social services, labour standards, and environmental regulations, further decentralizing Canada as one of the most decentralized federations in the Organisation for Economic Co-operation and Development (OECD). Questions of identity also permeated this version of federalism, further fragmenting shared pan- Canadian identity to the extent that it is tied to social programming that fosters solidarity, replacing it to some degree with symbols of the military and monarchy.34 Also infused in this approach, and elaborated in federal family-related policies, was a view that the (usually nuclear, heterosexual) family unit was the principal site for collective identity.35 The Trudeau government approach departs considerably from its predecessor. Where Prime Minister Stephen Harper adopted a minimalist approach to intergovernmental relations, foregoing provincial first ministers’ meetings in favour of ad hoc bilateral negotiations, Prime Minister Justin Trudeau has revived the larger meetings and deployed collaborative (federally driven and, in the case of childcare agreements, province-driven bilateral) federalism.36 Additionally, an emerging form of “reconciliatory federalism” holds some “promise of a new type of cooperative federalism that respects the sovereignty of the provinces and Indigenous peoples.” 37 The significant challenges of jurisdictional 32 Ibid. 33 Bezanson, “Mad Men Social Policy,” supra note 3 at 22; Tom Kent, “The Federal Spending Power Is Now Chiefly for People, Not Provinces” (2008) 34:1 Queen’s LJ 413 at 425. 34 Jane Taber, “Harper Spins a New Brand of Patriotism,” Globe and Mail (19 August 2011), online: VOL. 14 JOURNAL OF LAW & EQUALITY 179 autonomy for social program delivery remain, but some developments, notably federal funding for the development of a publically supported system of early childcare education and care38 and major investments in social housing,39 signal a renewed collaboration.40 The contribution of the federal government to major cost-shared provincially/territorially delivered social programs, including family-related programs, and equalization payments was about 26 percent of the federal program spending in 2015–16; thus, provinces and territories continue to bear majority responsibility for social program funding. 41 The Trudeau government’s version of federalism appears to seek to reanimate the use of social programming to foster national identity and redress some disparities in social service provision provincially/territorially. In federal family-related policies, this approach to federalism takes an expansive and pluralistic view of families and adds a dimension of gender-based analysis to policy formulation. Federalism, as we have seen, shapes institutions and policy instruments, but visions and ideas—the ways in which political actors “interpret problems and identify solutions”—also shape the social architecture of welfare regimes.42 Approaches to families and federalism are thus important to the politics of redistribution in Canada. Although the significant shift in the conceptualization of the role of gender equality and family form, as well as renewed intergovernmental cooperation on family-related policies, suggest a break from a more hands-off federal role in pan-Canadian social policy, two important cautions bear greater consideration: first, a significant 38 Childcare comes in a host of forms (e.g., custodial or educative) and is delivered in a range of sites (private homes or in centres) by different actors (family members, paid in-home caregivers, or early childhood educators). A system of childcare delivery, usually with goals, indicators, and care and education components and usually with a public management role, is referred to both as early childhood education and care (ECEC) and early learning and childcare (ELCC). The 2017 federal framework agreements with provinces and territories for public spending on childcare refer to ELCC, while ECEC is commonly used in childcare research in Canada. 39 Peter Zimonjic, “New Strategy Aims to Build 100,000 New Units, Repair 300,000 and Cut Homelessness by 50%,” CBC News (22 November 2017), online: 180 FEMINISM, FEDERALISM AND FAMILIES VOL. 14 portion of the Canadian population continues to prefer the ideology underlying Conservative approaches to family policy and, second, federal policy choices, despite a focus on gender equality, may continue to encourage a dual earner–female carer norm. A genealogy of federal family- related policies, to which we now move, begins to unpack these cautions. IV. FAMILY-RELATED FEDERAL POLICY: FROM CONSERVATIVE AND NEO-LIBERAL TO RENEWED SOCIAL INVESTMENT? A. The Harper Period: “Mad Men” Family Policy? One of the most significant shifts in family-related policy in Canada over the last decade came in 2006, when the Harper government cancelled the previous Liberal government’s bilateral agreements with provinces for building a national system of early learning and childcare. In lieu of childcare spaces, the new government put in place the Universal Child Care Benefit (UCCB), which, initially, was a $100 per month (taxable) benefit for each child under the age of six. Additional policies followed with a similar emphasis aimed at transferring money directly to parents rather than using the federal spending power for social program development or funding. These included a series of modest tax credits for children’s sports and, later, arts participation, pension income-splitting for seniors, and culminated with a controversial family income-splitting policy. 43 The Harper government also considered, but did not enact, an extension to parental leaves for up to two-and-a-half years, which was recommended as a measure to decrease demand for non-family-based childcare.44 These instruments of “family values” conservatism, coupled with a neo-liberal economic approach, resonated with many Canadians, and the Harper government was twice re-elected, in part on the strength of the popularity of these cash-for-care and tax policies. The policies themselves 43 See e.g. Kate McInturff & David Macdonald, Time to Grow Up: Family Policies for the Way We Live Now (Ottawa: Canadian Centre for Policy Alternatives, 2015); Ken Battle, The Choice in Child Care Allowance: What You See Is Not What You Get (Ottawa: Caledon Institute of Social Policy, 2006), online: VOL. 14 JOURNAL OF LAW & EQUALITY 181 produced significant immediate material consequences: high-income families and single earner, usually male, families benefited the most. Longer-term negative and regressive consequences included women’s labour market exit, lack of childcare services, and continued low wages in the care sector.45 Yet this populist approach—its direct rewarding of the (usually traditional) family unit with income to spend as they pleased— symbolically recognized carework. When public funding for childcare is pitted politically against cash-for-care policies, the emphasis in childcare is often on supporting (usually) a mother’s labour market participation and not on recognizing unpaid care done by families. This can feed cultural “mommy war” tensions between stay-at-home parents and working parents. Beyond this, families increasingly experience what Brigid Schulte calls “the overwhelm”—workplaces that have an ideal of an adult worker unencumbered by non-work responsibilities, alongside escalating cultural expectation of parents (particularly of mothers) and insufficient social supports and transfers.46 This overwhelm is nested in a self-help climate that individualizes responsibilities for social problems. Solutions to structural issues surrounding work–life balance are, for example, reduced to undertaking better personal scheduling (termed neo-liberal performativity). Absent important social policy architecture such as affordable and accessible childcare and given persistent gender wage inequalities in the paid labour force, the policies related to the imagined family in Conservative approaches appeared to recognize the identity and struggles of the family unit. Moreover, developing and implementing complex federal/provincial/territorial policies and programs takes time and can have less immediate appeal compared with the reliable translatability of a tax credit or monthly cheque.47 The ideas about gender, motherhood, and families that informed the Harper government’s policies, and accented its approach to federalism, were both deeply socially conservative and neo-liberal. The neo-liberal element was broadly consistent with Canada’s historical approach to welfare state policy development in which the household is the preferred site of social reproduction; it is cheapest to familialize this labour, irrespective of the racialized, gendered, or class-based features of divisions of paid and unpaid caring work. Canada’s welfare state form falls within 45 Bezanson, “Mad Men Social Policy,” supra note 3 at 29. 46 Brigid Schulte, Overwhelmed: Work, Love and Play When No One Has Time (New York: Sarah Critchon, 2014). 47 Bezanson, “Mad Men Social Policy,” supra note 3 at 29. 182 FEMINISM, FEDERALISM AND FAMILIES VOL. 14 the cluster of liberal welfare states, along with nations like the United Kingdom, the United States, and Australia.48 Linda White notes that liberal welfare states have in the past been “residual” in that governments tend to provide social supports on the basis of need, rather than universally. Responsibility for social reproduction is largely conceived of as a choice, and thus the responsibility primarily of the family and, in the absence of family, the market. Liberal welfare states have thus traditionally been less generous than other industrialized states in terms of public funding of social services and in terms of the overall availability of these services, and they have tended to have deeper social stratification.49 Welfare states, as we have seen, make choices about the distribution of supports to social reproduction, allocating principal responsibility at different times to the public sector, the private market, families, and the volunteer sector. In the Harper period, the mediation of social reproduction skewed significantly to the market and families. The policies themselves increased the possibility of labour market exit for women in higher-income households by permitting income splitting with a higher-earning spouse but did not provide sufficient income transfers in the form of the UCCB ($100), in order to purchase childcare or reduce employment for lower income households who wished to do so. 50 Additionally, the 2008 recession resulted in significant budget deficits and cuts in social spending 48 Urie Bronfenbrenner, “Child Care in the Anglo-Saxon Mode” in Michael E Lamb et al, eds, Child Care in Context (Hillsdale, NJ: Lawrence Erlbaum and Associates, 1992) 281; Gosta Esping-Andersen, The Three Worlds of Welfare Capitalism (Princeton, NJ: Princeton University Press, 1990); John Myles & Paul Pierson, “Friedman’s Revenge: The Reform of ‘Liberal’ Welfare States in Canada and the United States” (1997) 25:4 Politics and Society 443; Julia O’Connor, Ann Shola Orloff & Sheila Shaver, States, Markets, Families: Gender, Liberalism and Social Policy in Australia, Canada, Great Britain and the United States (New York: Cambridge University Press, 1999). 49 White, supra note 21 at 661. 50 The Harper government did continue to fund the Canada Child Tax Benefit, an income tax benefit weighted more generously to lower-income households. However, the Universal Child Care Benefit was funded in part by removing the young child supplement money ($249 annually for low- and modest-income families) from the Canada Child Tax Benefit. See Kate Bezanson, “‘Childcare Delivered through the Mailbox’: Social Reproduction, Choice and Neoliberalism in a Theo-Conservative Canada” in Susan Braedley & Meg Luxton, eds, Neoliberalism and Everyday Life (Montreal and Kingston: McGill-Queen’s University Press, 2010) 100. VOL. 14 JOURNAL OF LAW & EQUALITY 183 for all levels of government, compounding an already constrained redistributive policy landscape. B. The Trudeau Period: A Dual Earner–Female Carer Model? The election of the Trudeau government marked a significant ideational departure from the family values norms and open federalism that characterized the Harper period. A self-declared feminist government, the Liberals have embraced a broad understanding of families, gender, and gender identity and have prioritized intersectional gender-based analyses of budgets and policy development.51 The chief family-related policies they have enacted include rescinding the UCCB, adding the UCCB funding to the Canada Child Benefit and indexing it to inflation, rescinding the family income-splitting policy of the Harper era, reinvesting in social housing, adding new funding for early childhood education and care and negotiating agreements with subnational governments to administer it, revamping compassionate care leaves, and extending parental leave benefits to eighteen months from twelve months. It also announced plans to revamp pay equity for workers in federally regulated workplaces 52 but retained gender- regressive pension income-splitting policy from the Harper era.53 Expert-led and evidence-based social policy formulation, often absent or sublimated during the Harper era, has been revived in the Trudeau period. The agenda on gender (and, to a differing extent, racialized and 51 Ellen Wulfhorst, “Justin Trudeau Says to Raise Sons to Be Feminists Like Daughters,” Global News (17 October 2017), online: 184 FEMINISM, FEDERALISM AND FAMILIES VOL. 14 class-based) inequality is ambitious and includes a commitment, announced in Budget 2017, to subject all proposals to the federal Department of Finance to a gender-based analysis + (the plus indicating an intersectional lens). Such an analysis was first brought to bear in the intergovernmental social housing strategy announced in late 2017, with the result that 25 percent of funding was earmarked for supports for women and girls. With the prime minister noting famously that “poverty is sexist,” the Liberal approach thus far has also taken note of certain income inequality dimensions to family-related policy, enhancing significantly the non-stigmatizing Canada Child Benefit that weights income transfers most heavily to those with lower incomes and decreases incrementally with income earned. A significant focus in policy development concerns the persistence of a gender wage gap in the Canadian labour market, along with gender disparities in leadership/boardrooms and in certain science-based research sectors.54 An economic imperative—needing more women in the paid labour force in order to sustain long-term economic growth—animates this policy focus. In 2016 following a visit to Canada, Christine Lagarde, head of the International Monetary Fund asserted that increasing women’s labour force participation is good for economic growth and that there is considerable room for improvement in Canada.55 A profile of Canada’s labour force shows that an increase in well-educated women has not translated into proportional labour market participation; women’s overall participation rate remains 10 percent below men’s; women experience a vexing gender wage gap above the OECD average; and women make up only one in four senior managers. The result is that Canada’s real gross domestic product (GDP) is 4.5 percent lower than where it might be if more women, especially the pool of well-educated women, were in the labour force.56 Increasing growth, Lagarde noted, potentially does more than help the economy overall; it raises standards of living and tackles poverty.57 54 Joanna Smith, “Liberals to Dig Deeper, Aim Higher on Gender Equality in Federal Budget,” CBC News (18 February 2018), online: VOL. 14 JOURNAL OF LAW & EQUALITY 185 This analysis informs budget and spending priorities for Canada. A briefing note prepared for Finance Canada and obtained by the Canadian Press estimates that “closing the labour-market participation gap between women and men by half over 15 years would raise the country’s potential long-term economic growth by an average of 0.25 percentage points per year over that period.”58 Such an approach is required to offset the effects of Canada’s aging workforce, and certain policy levers significantly affect women’s labour market participation. Canada’s social policy architecture plays an important role in the kinds of decisions individuals and families can make to balance work and care; Employment Insurance (EI)-funded paid parental leaves and certain tax measures have had positive effects on women’s labour market participation rates, but Canada (outside Quebec) remains a consistent low spender on early childhood education and care.59 Although anchored in a progressive analysis of gender (and other) inequalities, the family-related policy approach that appears to be developing in Canada remains somewhat neo-liberal or what some scholars have called social investment.60 It is also fairly consistent with Canada’s liberal welfare state architecture. 61 Social investment perspectives, present in the policies of the former Liberal government of Paul Martin (2003–2006) and ubiquitous in many provincial policy approaches, converge “around ideas for modernization of social models via labour market involvement of all adults and new forms of investment, especially in human capital and include early childhood education and care.”62 A social investment frame centres on developing active labour market policies to encourage robust adult labour force participation (sometimes called an adult worker model) rather than “decommodification” (redistributing benefits). 63 Mothers and children, then, are a significant focus of social investment policies, and women’s lifetime economic security is understood as being located in their labour 58 Andy Blatchford, “Federal Budget 2018 Aims to Increase Workforce Participation of Women,” Global News (21 February 2018), online: 186 FEMINISM, FEDERALISM AND FAMILIES VOL. 14 market attachments and not related to state transfers or dependence on a male wage. As White explains, [a] big part of this social investment strategy focuses on encouraging labour force attachment for all, including mothers (see Lewis, 2001). Thus, instead of encouraging dichotomous male breadwinner-female caregiver roles, all should be encouraged to participate in the labour market. Policies that help sustain continuous or long-term attachment, such as maternity leave benefits, thus become part of the social investment mix … Another part of the social investment strategy focuses on children and their learning opportunities. Children are the core of a social investment strategy from a population health perspective, an anti-poverty perspective and a human capital development perspective. By investing in services, governments provide the means to allow parents to participate in the labour market, as well as balance work and family life, stave off poverty and social exclusion, and prepare all children for the future so that they can be productive adults themselves.64 Two key, interrelated policies—maternity/parental leaves and childcare— reveal that there are opportunities to develop policies based less on instrumental labour market concerns and more on building social solidarity and social policy as a public good. The latter requires an ideational shift, but, as we shall see, the conditions for such a shift may be present. V. MATERNITY AND PARENTAL LEAVE POLICY UNDER THE TRUDEAU GOVERNMENT Since the 1970s, Canada has had federal employment insurance for maternity leaves, expanding in the early 2000s to up to one year of combined maternity/parental/adoption leaves and in late 2017 to up to eighteen months. 65 Provinces and territories, to varying extents, have amended their labour codes to ensure job protection for those who qualify for, and opt to take, child-related leaves. Quebec, in the early 2000s, 64 White, supra note 21 at 663. 65 See Ann Porter, Gendered States: Women, Unemployment Insurance, and the Political Economy of the Welfare State in Canada, 1945-1997 (Toronto: University of Toronto Press, 2003); McKay, Mathieu & Doucet, supra note 20. VOL. 14 JOURNAL OF LAW & EQUALITY 187 introduced its own maternity and parental leaves program called the Quebec Parental Insurance Program (QPIP).66 The QPIP covers many more families than does the EI parental leave regime, has lower eligibility criteria, a higher income replacement rate, and includes a dedicated use-it-or-lose-it leave for fathers. Table 1 shows the differences between the two programs. Table 1: Parental leave in Canada and in Quebec, 2015 Canada EI Quebec Basic Quebec Special Plan Plan Eligibility 600 hours $2,000 earnings Self-employed As of 2011 Covered workers Waiting period 2 weeks per None couple Weeks by wage replacement rate (% of average earnings) Maternity 15 at 55% 18 at 70% 15 at 75% Paternity None 5 at 70% 3 at 75% Parental (shared) 35 at 55% 32 (7 at 70% + 25 at 75% 25 at 55%) Total weeks per 50 55 43 couple Adoption (shared) 35 at 55% (12 at 70% + 25 28 at 75% at 55%) Low income (net Up to 80% Up to 80% annual income <$25,921) Maximum insurable $524/week $894.22/week earnings (2015) $49,500/year $70,000/year Notes: (1) Only birth mothers are entitled to maternity leave in both plans; (2) both jurisdictions recognize same-sex relationships; (3) QPIP also has a plan for adoptive parents, whereby the total number of adoption benefit weeks (37 weeks—12 weeks at 70% + 25 weeks at 55% of income—under the basic plan and 28 weeks at 75% of the income under the special plan) may be taken by one of the two adoptive parents or shared between them. Source: Lindsey McKay, Sophie Mathieu & Andrea Doucet, “Parental-Leave Rich and Parental-Leave Poor: Inequality in Canadian Labour Market Based Leave Policies” (2016) 58:4 Journal of Industrial Relations 543 at 551. Extending parental leaves from twelve to eighteen months was a feature of the Trudeau Liberals 2015 electoral platform, implemented in the fall of 66 Diane Tremblay, “Quebec’s Policies for Work-Family Balance: A Model for Canada?” in Bonnie Fox, ed, Family Patterns, Gender Relations, 4th ed (Toronto: Oxford University Press, 2014). 188 FEMINISM, FEDERALISM AND FAMILIES VOL. 14 2017. The extension has raised significant concerns for at least five reasons: (1) the income replacement rate for the extension is flat—that is, individuals can take twelve months at 55 percent income replacement or eighteen months, spreading that same income at 33 percent and making it accessible only to higher-income families; (2) the leave period is too long, as international data suggest that longer leaves, especially at lower replacement rates, have the effect of encouraging women’s labour market exit, thus reducing their lifetime earnings, extending the motherhood penalty in earnings, and contributing to women’s lifetime risk of poverty;67 (3) the extension of the leave to eighteen months may be in lieu of needed heavy investments in early learning and care, thus again refamilializing the work of caregiving to individuals and, because women make up the majority of leave takers, to mothers; (4) the eligibility requirements remain high, with over 30 percent of mothers not currently eligible for EI leaves; and (5) the 2017 changes made no provision for dedicated paternity/second caregiver leaves that might encourage a sharing of caregiving in households. 68 Dedicated second caregiver leaves have significantly increased the number of fathers taking leaves in Quebec, with 79 percent of fathers taking some period of paternity or parental leaves in 2013, with only 9.4 percent of fathers outside of Quebec claiming or intending to take parental leave in the rest of Canada.69 This model is in many ways consistent with the Harper-era approach to leaves, familializing the work of social reproduction in homes to be done by mothers who can afford such a leave. It does not encourage a redistribution of care work among parents; instead, because the eligibility for an EI leave requires regular labour market attachment, it encourages a dual earner and female caregiver norm. 70 Workplace norms that discourage fathers/second caregivers to take leaves are not disrupted by 67 Hadas Mandel, “Winners and Losers: The Consequences of Welfare State Policies for Gender Wage Inequality” (2012) 28:2 European Sociological Review 241; Michelle Budig et al, “The Motherhood Penalty in Cross-National Perspective: The Importance of Work-Family Policies and Cultural Attitudes” (2012) 19:2 Social Politics 163. 68 Budget 2018 does make provision, starting in 2019, for a use-it-or-lose-it leave. See the postscript at the end of this article for an analysis of the leave. 69 Andrea Doucet et al, “Canada Country Note” in A Koslowski, S Blum & P Moss, eds, International Review of Leave Policies and Research 2016 (April 2017), online: VOL. 14 JOURNAL OF LAW & EQUALITY 189 this policy extension.71 Taken as a whole, the policy fits within a social investment liberal welfare state frame, pursuing a gender policy aimed at keeping women in labour markets (at least to access paid leave entitlement) while retaining a preference for care to be provided privately in homes or, if needed, purchased on the private market. VI. CHILDCARE POLICY UNDER THE TRUDEAU GOVERNMENT Leaves and childcare go hand in hand, and there have been initial important investments in early childhood education and care. Budgets 2016 and 2017 announced $7.5 billion for early learning and childcare to be transferred to provinces and territories. A portion of the funds was to be devoted to Indigenous childcare initiatives, spread over a decade beginning in 2017. Estimates suggest this could yield 40,000 new subsidized childcare spaces to the roughly 550,000 regulated childcare spaces in Canada, with additional funding to follow should the Liberals be re-elected. 72 The investments in childcare are essential in terms of increasing system-wide capacity, potentially decreasing exorbitant fee costs, and encouraging women’s labour market attachment. However, the proposed investment falls considerably below the international benchmark of 1 percent GDP spending, placing Canada at around 0.3 percent spending on early learning and childcare.73 In mid 2017, a federal Multilateral Early Learning and Child Care Framework was announced that includes principles of accessibility, affordability, quality, flexibility, and inclusivity.74 However, the framework “does not set goals, objectives, tar- gets or timetables, nor does it identify initial benchmarks on which to 71 The criticisms of this extension, in concert with the Budget 2017 commitment to gender- based analysis+, have caused some reflection on the part of the Trudeau government. It is anticipated that Budget 2018 will include a use-it-or-lose-it leave similar to the one in Quebec in order to address the normatively disjunctive consequence that this policy encourages adult worker/female carer outcomes. It remains unclear whether the other criticisms I have noted around access, eligibility, income replacement level, and duration of leave will be addressed. 72 Canada, Department of Finance Canada, Budget 2017: Building A Strong Middle Class (Ottawa: Finance Canada, 2017), online: 190 FEMINISM, FEDERALISM AND FAMILIES VOL. 14 calculate metrics. The framework does not set requirements with respect to public or parliamentary accountability beyond the public posting of action plans and progress reports.”75 There are four interrelated concerns about the Trudeau government’s approach to childcare. First, the government has encouraged targeting spending, asking provinces and territories to funnel new federal childcare dollars to those most in need of help, particularly low income families, single parent families, and families with a child with special needs. 76 Second and related, a targeted approach misses an opportunity to establish a universal approach to childcare that the international policy consensus says yield the greatest results, particularly if the aim is advancing women’s labour market attachment and economic security. 77 While targeting supports to lower-income families is seemingly positive, the approach can make childcare a welfare measure. Because subsidized childcare services are delivered in a variety of settings—some centre based, some regulated in-home care—and run by a range of agents (not for profits, for profits, some municipally or college/university run), with funding and eligibility administered often by municipalities, targeted childcare access can further enmesh vulnerable families in what is often already a demoralizing and heavily scrutinized social welfare system. And because certain families and not others gain access to spaces and cost reductions, it can dilute the possibilities for social solidarity and a cross-class, cross-family buy-in to public services. Universal publicly funded childcare (available based on need/demand) that is affordable, accessible, high quality, and not for profit assists parents to work (and reduces poverty), creates jobs for early childhood educators (disproportionately women), and potentially improves social and learning outcomes for children. Such an approach views childcare as a shared social good rather than a labour market policy. A third concern is that infant and toddler care is the most expensive and the least available form of childcare. The extension of parental leaves to eighteen months echoes the recommendation from the Harper period to use leaves (almost exclusively, maternal leaves) to decrease demand for childcare. This comes with the negative motherhood wage penalty and other income and labour market attachment consequences noted above. Finally, 75 Canadian Centre for Policy Alternatives, supra note 73 at 41. 76 Jordan Press & Joanna Smith, “Liberals Look to Target Child-Care Funding to ‘Vulnerable’ Families,” Globe and Mail (7 April 2017), online: VOL. 14 JOURNAL OF LAW & EQUALITY 191 there is no substantive national framework for goals, targets, and timetables for childcare and no national legislative framework protecting childcare as a social good for Canadians (similar to Canada’s only other social democratic national welfare state policy—health care). The confluence of these factors makes it susceptible to revocation and retrenchment by the political or ideological orientation of future governments. Canada has had a stop-start relationship to the field of early learning and care, and provinces, notably Quebec, Ontario, Manitoba, Prince Edward Island, and British Columbia have made significant investments in building their systems. In 2006, the OECD ranked Canada last of fourteen nations for childcare. The organization noted that Canada has a “patchwork of uneconomic, fragmented services, within which a small ‘child care’ sector is seen as a labour market support, often without a focused child development and education role.”78 There are significant challenges to building a childcare system and, as with parental leaves, the aspirational aims of investing in work–life balance appear to be constrained by instrumentalist social investment approaches. Yet, despite these cautions, two key pillars of social policy related to gender equality— parental leaves and childcare—are firmly on national and provincial/territorial agendas, ensconced in a broader consideration of gender-based analysis. VII. CONCLUSION: FEMINIST FUTURES? The current political climate in Canada favours important progressive renovation of Canada’s social policy architecture for family-related policies, with significant implications for gender equality. The social investment frame that animates current policy initiatives, however, requires revision if it is to move to an approach that views leaves and childcare as social goods rather than as labour market activation for mothers in particular. The introduction of a use-it-or-lose it father or second caregiver leave is an important step in using social policy to encourage greater sharing of caregiving, both in infancy and over the life course. Targeting of (rather than universalizing) early learning and care along with parental leave extensions at low rates of income replacement replicate and, to some extent, converge with Harper-era policies. These policies have social class-based effects. In the domain of childcare, class effects 78 OECD, OECD Country Note: Early Childhood Education and Care Policy in Canada (Paris: OECD, 2004), online: 192 FEMINISM, FEDERALISM AND FAMILIES VOL. 14 are evident insofar as childcare can become, in essence, a welfare measure. Similarly, long leaves are inaccessible to lower-income families because of very low replacement rates, consequently reserving longer leaves for higher-income households. Thus, higher-income families, in policy terms, are more able to address the social reproduction dilemma via providing parental care for longer periods of time. These policies, in concert, appear to continue to encourage a dual earner–female carer model. They have the potential outcome of increasing the motherhood penalty in earnings for women, may encourage women’s labour market exit or part-time re-entry absent childcare supports, and may thus increase women’s lifetime risk of poverty. Investing robustly in a publicly managed universal system of early learning and care counters some of these problematic, gendered outcomes. It also invests in women’s paid care work with expansions in the sector likely coming with more jobs and concomitant wage increases for early childhood educators. The collaborative federalism currently evident in the Trudeau government’s approach may assist in building dialogue and a best practices model for childcare program delivery among the provinces, as some provinces have moved to develop important universal access- oriented policies in early learning and care. But a national framework requires strong benchmarks and goals and, crucially, a legislative framework that protects expansions and investments in the early learning and care sector, similar to those enjoyed in health care. The undoing of the nascent system of early learning and care by the Harper government underlines the importance of inoculating crucial social policy frameworks from changes in ideological approach to families and care. Conservative family-related policy tools, including their capacity to recognize and reward the unpaid work done in families in caring for children, remain popular. Creating systems that foster cross-class solidarity and understand investments in early learning and care as a social good while also supporting accessible income-enhanced parental leaves is a crucial choice that supports the goals of gender equity. For law and social policy, the social reproduction frame outlined here and applied to federalism and family-related policies offers a dynamic methodology to understanding the ways in which caring work is shifted among states, the market, families, and the not-for-profit sector and its gendered and other outcomes. VIII. POST-SCRIPT: FEDERALISM, FAMILIES, AND FEMINISM IN THE 2018 BUDGET As this article was going to press, Budget 2018 was introduced. On 27 February 2018, the federal government tabled its budget, widely hailed as VOL. 14 JOURNAL OF LAW & EQUALITY 193 a gender equality budget.79 To illustrate, the word gender was mentioned 358 times in the 367-page budget, compared to twice in 2016.80 In addition to announcements in a range of policy areas (detailed below), a commitment to addressing gender wage disparities, and efforts aimed at increasing women’s labour market participation, the budget contains a fifty-eight-page chapter dedicated to gender equality.81 One of its most significant features is its “Gender Results Framework,” which is the result of the Budget 2017 commitment to develop a gender-based analysis+ (GBA+) that aims to enshrine GBA+ legislatively to ensure all future budgeting processes adhere to its principles. Extending the key question posed in this article, does Budget 2018 signal a shift in Canada’s social policy architecture in relation to family-related policy and gender equality? How does it address the social reproduction dilemma? A. GBA+: The Gender Results Framework Budget 2018 elaborates a “Gender Results Framework” around six pillars: education and skills development, economic participation and prosperity, leadership and democratic participation, gender-based violence and access to justice, poverty reduction, health and well-being, and gender equality around the world (see Appendix 1: Gender Results Framework). The framework proposes matrices and indicators aligned with each category to benchmark, track, and measure success or shortcoming. 82 The GBA+ framework is thus self-reflective and iterative. It notes that the “plus” component is a crucial, though not fully elaborated, framework as yet: The Government also recognizes that identities are complex. Not all women experience inequality, and not all men experience privilege. Binary notions of gender do not work for all Canadians, and race, class, sexuality, and ability— 79 Sarah Boesveld, “Key Takeaways from Justin Trudeau’s ‘Gender Equality’ Budget,” Macleans (27 February 2018), online: 194 FEMINISM, FEDERALISM AND FAMILIES VOL. 14 among other facets—all intersect to profoundly impact how gender is experienced in daily life. The Government acknowledges that this budget—though ambitious—does not solve all complex inequalities, but it is an important step forward in data, analysis and resources.83 It promises to invest in gender and diversity data gathering and analysis as part of its broad commitment to building and sustaining GBA+ via dedicated investments of $6.7 million over five years for a new Statistics Canada Centre for Gender, Diversity and Inclusion Statistics. 84 The GBA+ framework and process, its data gathering, its prospective legislative entrenchment, and, centrally, its iterative approach, has significant implications for combatting inequalities across a host of axes, including in the labour market and in the balancing of work and care. IX. KEY INVESTMENTS The budget makes significant initial investments in key areas related to pay equity for federally regulated workplaces, pay transparency, gender- based violence and harassment initiatives, gender and justice, apprenticeships, women in leadership, and women in science, technology, engineering, and mathematics, among others. It elevates Status of Women Canada to a full department and invests in community women’s organizations. It reworks, reforms, and enhances an important benefit— the Canada Workers Benefit (formerly the Working Income Tax Benefit)—which supplements the earnings of low-income workers, proposing to automatically enrol those eligible for it. It recognizes that important tax benefits that are available, such as the Canada Workers Benefit and the generous Canada Child Benefit, do not reach certain individuals and families, particularly Indigenous families in northern or remote areas; it has prioritized outreach to ensure that these entitlements have a greater redistributive impact.85 Among its most anticipated announcements is the addition of a use-it- or-lose-it parental leave for a second caregiver, called the Parental Sharing Benefit. This benefit is available to two-parent families (not to other second carers and not to single-parent families). It increases the total duration of available leave by five weeks if the second parent agrees to take a minimum of five weeks leave over the one-year leave period and by 83 Ibid at 219. 84 Ibid. 85 Ibid at 32, 34, 41, 44, 86, 196, 246, 248, 272. VOL. 14 JOURNAL OF LAW & EQUALITY 195 eight weeks over the eighteen-month period. It retains the same replacement rate and leaves eligibility criteria intact. Provinces and territories will need to amend their respective labour codes to extend job- protected leave to parents (see Table 2). Table 2: Parental leave regime Current EI parental leave regime Budget 2018 parental leave regime One year plan One year plan Either parent takes or shares 35 weeks If the other parent takes five weeks, at 55% average weekly earnings parents can share the 40 weeks at 55% average weekly earnings Eighteen month plan Eighteen month plan Either parent takes or shares 61 weeks If the other parent takes eight weeks, at 33% average weekly earnings parents can share the 69 weeks at 33% average weekly earnings Source: Canada, Department of Finance, Budget 2018: Equality + Growth: A Strong Middle Class (Ottawa: Finance Canada, 2018) at 46–8, online: Recognizing the growing economic consequences of an aging workforce, Budget 2018 anchors national long-term economic prosperity to women’s economic equality, labour market participation, and leadership. It highlights structural barriers to women’s greater labour market participation and acknowledges a gender wage gap that owes at least in part to an unequal distribution of, and support for, care work. The addition of the use-it-or-lose-it leave is nested in an acknowledgement of the potential for shared care work to alter often gendered care work arrangements and an emphasis on permitting women to return to the labour market potentially earlier. The emphasis in Budget 2018 weighs on the labour market activation side, focusing on measures to get more women into the labour market, into leadership positions, and into fields in which they are underrepresented. A provision that has received scant attention is Budget 2018’s provision that allows mothers to work part-time while on maternity leave (sickness claims are also included) without having their benefits clawed back.86 For mothers who are small business owners, for example, the latter may be exceptionally important, and for low-income mothers, it will allow them to supplement EI earnings. However, the broader issue of raising income replacement rates or increasing eligibility for leaves is not addressed in the budget, meaning that its benefits flow more to higher-income two-parent 86 Ibid at 249. 196 FEMINISM, FEDERALISM AND FAMILIES VOL. 14 households. Moreover, as will be elucidated below, it extends a mixed and at times incoherent social policy architecture, individualizing responsibility for the inputs into social reproduction (such as working while on a claim) without necessarily providing adequate supports for leaves or care. The most glaring absence is childcare. While investments were made in 2017, childcare is largely absent in this budget. This absence, along with no talk of a universal (non-targeted) system of care, leaves the biggest lever for women’s economic participation largely untouched. X. FAMILY POLICY ARCHITECTURE: VARIETIES OF LIBERALISM? Budget 2018 remains a largely dual earner–female carer approach, although the addition of the use-it-or-lose-it leave and the promise to develop a framework for a national pharmacare program disrupt this categorization somewhat. The absence of movement on childcare, the continued focus on targeting childcare, and the sustained low replacement rates for parental leaves suggest a variation on the social investment paradigm, despite the elaboration of crucial GBA+ analysis and frameworks. Using its iterative potential, Budget 2019 could decamp some of this path dependent entrenchment. Funding maternity and parental leaves at the Quebec QPIP levels and lowering eligibility thresholds would make leaves not only more affordable and accessible to more families but also would likely encourage greater uptake from second parents (often fathers) for whom low replacement rates may serve as disincentives to take leaves. Decreasing the motherhood wage penalty is thus aided by better- funded leaves, if they allow women to re-enter the labour market earlier and share care work. However, absent childcare, and given costs, barriers to access, and quality issues, leave policy change efforts will not yield significant gender equality gains on their own. The state’s role in underwriting some of the work of social reproduction—defamilializing the social reproduction dilemma—is largely unmet in Budget 2018. Budget 2019 will come in an election year, and leaving the gains made towards the development of a national system of early learning and care unprotected legislatively risks undoing the significant progress made in the 2017 and 2018 budgets. Enshrining early learning and care in a statutory framework comparable to the Canada Health Act,87 such as was proposed in 2006 in the Early Learning and Child Care Act,88 is the next step for the GBA+ framework laid out in Budget 2018. 87 Canada Health Act, RSC 1985, c C-6. 88 Bill C-303, Early Learning and Child Care Act, 1st Sess, 39th Parl (2006) (defeated after second reading). VOL. 14 JOURNAL OF LAW & EQUALITY 197 APPENDIX 1: CANADA’S GENDER RESULTS FRAMEWORK Source: Canada, Department of Finance, Budget 2018: Equality + Growth: A Strong Middle Class (Ottawa: Finance Canada, 2018) at 221, online: A Comment: The UN CEDAW Committee’s Concluding Observations of Canada Lara Koerner Yeo ABSTRACT This comment provides a general background on the Concluding Observations of Canada issued by the United Nations Committee on the Elimination of Discrimination against Women in November 2016. It focuses on three recommendations made to Canada: a multi-juridical treaty implementation mechanism; a national gender equality plan; and improved state response to violence against Indigenous women and girls. The comment highlights gaps in Canada’s domestic implementation of the Convention on the Elimination of All Forms of Discrimination against Women and the long-term Canadian civil society advocacy on these issues. I. INTRODUCTION In October 2016, the United Nations (UN) Committee on the Elimination of Discrimination against Women (CEDAW Committee or Committee) conducted a periodic review of Canada. It released its Concluding Observations of this review in November 2016. 1 The Concluding Observations contain the CEDAW Committee’s views on Canada’s implementation of the international Convention on the Elimination of All Forms of Discrimination against Women (CEDAW or the convention), including recommendations for how Canada can improve its compliance Steering Committee and Human Rights Committee (HRC) member of the Canadian Feminist Alliance for International Action. This comment’s analysis is informed by the author’s treaty body advocacy work on behalf of FAFIA as well by the guidance and insights of Shelagh Day, a fellow Steering Committee member and chair of the FAFIA Human Rights Committee. 1 Committee on the Elimination of Discrimination against Women, Concluding Observations of the Combined Eighth and Ninth Periodic Reports of Canada, UN Doc CEDAW/C/CAN/CO/8-9 (18 November 2016) [2016 CEDAW Concluding Observations]. Convention on the Elimination of All Forms of Discrimination against Women, 18 December 1979, 1249 UNTS 13 (entered into force 3 September 1981) [CEDAW]. This protocol is provided for in the treaties (see e.g. art 21(1): “The Committee … may make suggestions and general recommendations based on the examination of reports and information received from the States Parties”). CEDAW is also referred to as the “Women’s Convention.” 200 COMMENT: CEDAW COMMITTEE VOL. 14 with the convention.2 This comment provides background on the CEDAW Committee and focuses on three issues that feature in its recommendations to Canada: a coordinated federal, provincial and territorial treaty implementation mechanism; the need for a national gender equality plan; and inadequate governmental response to protect the rights of missing and murdered Indigenous women and girls. The final section connects the Concluding Observations’ recommendations to those made by the CEDAW Committee in its 2015 inquiry into missing and murdered Indigenous women and girls. The comment exposes gaps in Canada’s domestic implementation of CEDAW and examines how the CEDAW Committee’s recommendations interact with past treaty jurisprudence. The comment also highlights the persistent work of advocates to improve the domestic advancement of women’s rights in Canada in compliance with the convention. II. CEDAW COMMITTEE BACKGROUND CEDAW enshrines the principles of equality and non-discrimination3 and provides a framework to identify gendered human rights violations as forms of discrimination against women.4 It is the only women-specific UN treaty, setting out the obligations that states owe to women.5 The treaty is a binding source of international law6 upon ratification by state parties.7 2 CEDAW, supra note 1. See Rikki Holtmaat, “The CEDAW: A Holistic Approach to Women’s Equality and Freedom” in Anne Hellum & Henriette Sinding Aasen, eds, Women’s Human Rights CEDAW in International and National Law (Cambridge: Cambridge University Press, 2013) 95 at 95. 3 CEDAW, supra note 1, arts 1-3; the first five articles with the preamble together set out that the standard of treatment is equality. Christine Chinkin, “Reservations and Objections to the Convention on the Elimination of All Forms of Discrimination against Women” in JP Gardner, ed, Human Rights as General Norms and a State’s Right to Opt Out (London: British Institute of International and Comparative Law, 1997) 64 at 66; see also Holtmaat, supra note 2 at 97. 4 Fleur Van Leeuwen, “Women’s Rights Are Human Rights!”: The Practice of the United Nations Human Rights Committee and the Committee on Economic, Social and Cultural Rights” in Anne Hellum & Henriette Sinding Aasen, eds, Women’s Human Rights CEDAW in International, Regional and National Law (Cambridge: Cambridge University Press, 2013) 242 at 265; see also CEDAW, supra note 1, art 5(a) and Part 2; Tebtebba Foundation, Forest Peoples Program, and Asian Indigenous Women’s Network, Realizing Indigenous Women’s Rights A Handbook on the CEDAW (Baguio City, Philippines: Tebtebba Foundation, 2013) at 37 [Realizing Indigenous Women’s Rights]. 5 State parties’ obligations under international human rights law are owed to individuals and collectives, not to other state parties. 6 See the sources of international law enumerated in Statute of the International Court of Justice, 26 June 1945, 33 UNTS 993 (entered into force 31 August 1965), art 38. 7 Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980), art 26. VOL. 14 JOURNAL OF LAW & EQUALITY 201 The CEDAW Committee is a quasi-judicial treaty body8 in the UN human rights system. Among its general functions, the CEDAW Committee monitors states’ compliance with CEDAW through the periodic review process resulting in the Concluding Observations of states parties and conducts inquiries under the Optional Protocol to CEDAW.9 It acts as the principal interpreter of CEDAW and develops its normative content through the output of jurisprudence, including Concluding Observations, general comments, inquiry reports, and individual communications.10 The CEDAW Committee’s Concluding Observations reference and build on its past jurisprudence and focus exclusively on the state party under review.11 The Committee can also build on the recommendations made to the state party by other treaty bodies. Canada is a party to seven international human rights treaties that enshrine the principle of non- discrimination.12 Its treaty obligations lead to similar, overlapping treaty body recommendations related to crosscutting discrimination matters.13 8 Kerstin Mechlem, “Treaty Bodies and the Interpretation of Human Rights” (2009) 42 Vand J Transnatl L 905. Others consider treaty bodies to be non-judicial ": see e.g. John Tobin, “Seeking to Persuade: A Constructive Approach to Human Rights Treaty Interpretation” (2010) 23 Harv Hum Rts J. 9 See Joanne Pedone & Andrew R Kloster, “New Proposals for Human Rights Treaty Body Reform” (2012-13) 22 J Transnatl L & Poly 29 at 33; see also United Nations (UN), International Human Rights Instruments, Compilation of Rules of Procedure adopted by Human Rights Treaty Bodies, note by the Secretariat, UN Doc HRI/GEN/3/Rev.3 (2008) at 121, Rule 55 [Rules of Procedure]. Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women, 15 October 1999, 2131 UNTS 83 (entered into force 20 December 2000) [Optional Protocol]. 10 International human rights jurisprudence is developed in part by the output of UN treaty bodies (see e.g. Realizing Indigenous Women’s Rights, supra note 4 at 36). 11 It is common practice for treaty bodies to reiterate or build on recommendations in their previous Concluding Observations to a state party. 12 CEDAW, supra note 1; International Convention on the Elimination of Racial Discrimination, 21 December 1965, 660 UNTS 195, art 1 (entered into force 4 January 1969); International Covenant on Civil and Political Rights, 19 December 1966, 999 UNTS, arts 3-4 (entered into force 23 March 1976); see also Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, 1465 UNTS 85, art 1 (entered into force 26 June 1987) [Convention against Torture]; International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 UNTS 3, art 2-3 (entered into force 3 January 1976); Convention on the Rights of Children, 20 November 1989, 1577 UNTS 3, art 2 (entered into force 2 September 1990); and the Convention on the Rights of Persons with Disabilities, 24 January 2007, 999 UNTS 171, art 2-3 (entered into force 3 May 2008). 13 See e.g. 2016 CEDAW Concluding Observations, supra note 1; HRC, Concluding Observations on the Sixth Periodic Report of Canada, UN Doc CCPR/C/CAN/CO/6 (13 August 2015) at para 6 [2015 HRC Concluding Observations]. 202 COMMENT: CEDAW COMMITTEE VOL. 14 The Committee assumes an oversight role by way of its periodic review process and engages with state parties to review the extent to which existing domestic law, policy, and practice fulfill a State’s obligations under CEDAW. The Concluding Observations highlight areas that need improved governmental response. The detailed recommendations are informed by the expertise of the Committee’s members as well as by reports from government and civil society organizations.14 The CEDAW Committee’s 2016 Concluding Observations of Canada are nearly double the average length of eight to ten pages.15 This set of Concluding Observations represents the CEDAW Committee’s findings and recommendations from Canada’s eighth and ninth periodic review by the Committee.16 The Committee’s 2016 Concluding Observations cover myriad issues that are integral to women’s advancement, such as women’s access to legal aid, housing, and education; pay equity and the elimination of the gender pay gap in the workforce; unaffordable, inaccessible childcare; women’s sexual and reproductive health rights; and the treatment of women in detention. The Concluding Observations acknowledge the different positionalities of women by naming groups of women who are subject to multiple, intersecting forms of discrimination, including Indigenous, African-Canadian, migrant, asylum-seeking, and refugee women; women with disabilities; single mothers; and lesbian, bisexual, transsexual, and intersex women. 17 They serve as the most current, comprehensive recommendations to Canada on how to improve 14 The CEDAW Committee is made up of women’s rights experts. See United Nations Office of the High Commissioner for Human Rights, “Membership” (2017), online: federal, provincial, and territorial compliance with CEDAW. Three issues, in particular, deserve to be highlighted. III. A COORDINATED FEDERAL, PROVINCIAL, AND TERRITORIAL TREATY IMPLEMENTATION MECHANISM In its General Observations, the CEDAW Committee recommends that Canada develop a mechanism to ensure the “transparent, coherent and consistent implementation of the Convention” across provinces and territories.18 Some such mechanism is necessary to ensure compliance in a federal system. Article 2 of CEDAW requires states to “address all aspects of their legal obligations under the Convention to respect, protect and fulfil women’s right to non-discrimination and to the enjoyment of equality.”19 A breach of this obligation can flow from state party failures “to take necessary legislative measures to ensure the full realization of women’s rights … to adopt national policies aimed at achieving equality between women and men, and … to enforce relevant laws.”20 There is no legislation in Canada that formally incorporates CEDAW into its domestic law.21 Canada has bound itself to comply with CEDAW through existing law and practice as well as through the interpretation22 and application of the Canadian Charter of Rights and Freedoms23 and statutory human rights codes.24 Yet, Canada has no domestic mechanism 18 2016 CEDAW Concluding Observations, supra note 1 at para 11. 19 CEDAW Recommendation 28, supra note 17 at para 9. 20 Ibid at para 10. 21 Hugh Kindred et al, eds, International Law Chiefly as Interpreted and Applied in Canada, 8th ed (Toronto: Edmond Montgomery, 2014) at 174. 22 The Canadian judiciary considers international human rights law, such as CEDAW, as guidance and applies international legal principles in its decision-making. See e.g. R v Ewanchuk, [1999] 1 SCR 330, 169 DLR (4th) 193; Reference re s 293 of Criminal Code of Canada, 2011 BCSC 1588, [2011] BCJ No 2211; R v Arcand, 2010 ABCA 363, [2010] AJ No 1383; Canadian Foundation for Children, Youth & the Law v Canada, 2004 SCC 4 at para 31, [2004] 1 SCR 76; Reference Re Public Service Employee Relations Act, [1987] 1 SCR 313 at para 58, 38 DLR (4th) 161; Baker v Canada, [1999] 2 SCR 817, 174 DLR (4th) 193; Pushpanathan v Canada, [1998] 1 SCR 982, 160 DLR (4th) 193. See the use of language such as “incorporation” where principles of international law, such as refoulement, can be “unimplemented” but incorporated into domestic law, policy, and practice. 23 Committee on the Elimination of Discrimination against Women, Combined Eighth and Ninth Periodic Reports of States Parties Due in 2014, Canada, UN Doc CEDAW/C/CAN/8- 9 (13 April 2015) at para 7; Canadian Charter of Rights and Freedoms, Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. 24 See e.g. Canadian Human Rights Act, RSC 1985, c H-6; Human Rights Code, RSO 1990, c H-19. 204 COMMENT: CEDAW COMMITTEE VOL. 14 to ensure that its law and practice, in fact, meets its international obligations under CEDAW. While the CEDAW Committee reviews Canada’s status of implementation to check for compliance, this review is an external, independent check. Canada sorely lacks such a domestic mechanism to monitor and coordinate CEDAW’s implementation across federal, provincial, and territorial governments in a transparent, accountable way.25 There is also no routine public government reporting or information available that tracks the implementation of recommendations made by the CEDAW Committee, or any other treaty body, to Canada. Canadians have no information on whether and how (if at all) treaty body recommendations, such as the Committee’s Concluding Observations, are ultimately acted upon by federal, provincial, and territorial governments. This lack of a domestic implementation mechanism with a public reporting function is tantamount to an implementation failure, as the CEDAW Committee recognized, which cuts against Canada’s obligations under Article 2 of the convention. 26 Other treaty bodies, as well as Canadian civil society organizations, have urged Canada to create a domestic implementation mechanism. 27 The lack of a domestic mechanism to monitor and narrow the treaty implementation gap exists for all of the human rights treaties to which Canada is party. The CEDAW Committee’s 2016 recommendation reiterates previous recommendations.28 Civil society actors have been advocating domestically 25 Canadian Feminist Alliance for International Action (FAFIA), Reply to Issues 3, 4, 7, 8, 11, 12 &13: Because Its 2016! A National Gender Equality Plan (October 2016) at 21, online: for the development of an implementation mechanism for many years, speaking to the issue in international forums 29 as well as in domestic forums, such as the Standing Senate Committee on Human Rights.30 There is broad consensus among civil society actors that Canada needs an implementation mechanism to ensure that governments are taking steps to improve compliance with Canada’s international human rights obligations.31 There is civil society pressure on the federal government to convene a meeting of federal, provincial, and territorial ministers responsible for human rights—a request that mirrors one of the 2010 Standing Senate Committee recommendations.32 In December 2017, for the first time in twenty-nine years, the federal, provincial, and territorial ministers responsible for human rights met to discuss priorities for Canada in relation to the implementation of its human rights obligations.33 At this meeting, the ministers made a commitment in principle to a federal, provincial, and territorial senior-level human rights mechanism. This is a timid first step that requires follow-up, including annual ministerial meetings, budgetary commitments, and a transparent avenue for civil society involvement. IV. THE NEED FOR A NATIONAL GENDER EQUALITY PLAN A national gender equality policy is considered under international law to be a piece of national machinery for the advancement of women and gender mainstreaming.34 The CEDAW Committee suggests that such a policy should be comprehensive, action and results oriented, involve all 29 Empty Words, supra note 27 at 9; see also Amnesty International, Human Rights Agenda for Canada 2016 (2016) at 13, online: 206 COMMENT: CEDAW COMMITTEE VOL. 14 levels of government and the private sector, and incorporate a range of different measures to advance women’s equality. 35 While this type of policy does not yet exist in Canada, there have been two notable occasions when state and non-state actors have contributed to a strategy or recommendations to work towards the elimination of discrimination against women in Canada: the release of the Royal Commission on the Status of Women’s final report and the federal government plan, Setting the Stage for the Next Century: A Federal Plan for Gender Equality.36 Almost fifty years have passed since the Royal Commission on the Status of Women released its report in 1970 on the steps necessary to advance women’s equality in Canada.37 The Royal Commission made numerous recommendations on issues such as women’s socio-economic conditions, pay equity and the gender wage gap, the stereotyping and harassment of women in the workforce, and childcare. While there was concrete change in response to the Royal Commission’s report,38 some recommendations remain unimplemented and entrenched barriers to women’s substantive equality persist.39 Prior to the fourth World Conference on Women in Beijing in 1995, Status of Women Canada released Setting the Stage for the Next Century: A Federal Plan for Gender Equality. 40 This is the closest thing to a national gender equality plan that has existed in Canada. The plan committed Canada to conduct gender-based analysis, work towards women’s economic autonomy and the reduction of violence against women, increase women’s perspectives in governance, and promote 35 CEDAW Recommendation 28, supra note 17 at paras 24-6. 36 Status of Women Canada, Setting the Stage for the Next Century: The Federal Plan for Gender Equality (August 1995), online: gender equality in all facets of cultural life.41 Its first objective was the implementation of gender-based analysis throughout federal departments and agencies. 42 The plan was phased out in 2000 before being fully implemented. There has been no federal plan since then.43 There is a recent renewed commitment to gender-based analysis by the federal government.44 However, there is not yet a standardized, mandatory protocol across federal departments and agencies.45 In 2016, for example, a Parliamentary Committee on the Status of Women reported that only twenty-nine of 110 federal departments and agencies have committed to conducting gender-based analysis.46 In 2017, the federal budget included for the first time a gender statement providing a gender-based analysis of some budgetary measures.47 The statement highlights a number of measures to reduce the wage gap, to make participating in the workforce more accessible for women, and to combat poverty and violence against women. 48 While these initiatives are welcome, they are not part of a broader strategy to eliminate structural gender discrimination. Rather, they exemplify a consistent federal government approach of addressing gender discrimination in a piecemeal way. For the first time, in the 2016 Concluding Observations, the CEDAW Committee recommended that Canada develop a national gender strategy, acknowledging intersectional experiences of gender inequalities.49 While 41 While subsequent policies have followed, such as the Agenda for Gender Equality, they have focused exclusively, or almost exclusively, on gender-based analysis. 42 Setting the Stage, supra note 36 at 7. 43 Status of Women, Introduction to GBA, The History of GBA, Domestic and International Milestones (28 March 2017), online: 208 COMMENT: CEDAW COMMITTEE VOL. 14 the recommendation is new in the context of the relationship between Canada and the Committee, it builds on a March 2016 recommendation made by the Committee on Economic Social and Cultural Rights (CESCR Committee) to Canada. The CESCR Committee recommended that the State party develop and implement a comprehensive national gender equality policy to address the structural factors leading to gender inequality, in close cooperation with provinces and territories, as well as in consultation with civil society organizations.50 In addition to this recommendation, the CESCR Committee listed policy priorities that fall within the scope of removing structural gender inequalities in Canada, such as removing all sex discrimination from the federal Indian Act and providing access to universal affordable childcare.51 Treaty body recommendations are not binding upon state parties. They are a form of treaty body interpretation, indicating what a treaty body considers a state party should do in its domestic context to fulfill a treaty’s provisions. 52 Recommendations are thus proposed strategies for how to better comply with human rights obligations. The CEDAW Committee’s recommendation for a national gender equality plan indicates that a holistic approach would be the most effective way to respond to the inadequacies of Canada’s current law and policy framework to eliminate gender discrimination. This stance aligns with civil society advocates who argue that Canada needs a national gender equality plan to coordinate the existing partial and siloed measures across different levels of government.53 The federal government has not formally committed to devising a national gender equality plan in response to the CEDAW Committee’s call.54 Yet it is advancing strategies on issues integral to women’s advancement.55 50 2016 CESCR Concluding Observations, supra note 26 at para 22. 51 Ibid. Indian Act, RSC 1985, c I-5. 52 Michael O’Flaherty & Claire O’Brien, “Reform of UN Human Rights Treaty Monitoring Bodies: A Critique of the Concept Paper on the High Commissioner’s Proposal for a Unified Standing Treaty Body” (2007) 7:1 HRLR 141 at 158; on the subject of treaty interpretation, see also Tobin, supra note 8; Elizabeth Evatt, “Finding a Voice for Women’s Rights: The Early Days of CEDAW” (2002-03) 34 Geo Wash Intl L Rev 515. 53 2016 FAFIA Coalition Report, supra note 25 at 18. 54 Letter from FAFIA to federal ministers, 25 January 2017, online: These include Canada’s national housing strategy, 56 the beginnings of a national anti-poverty plan, 57 a federal strategy to address gender-based violence,58 and childcare services.59 These initiatives are in varying stages of development, and it is unclear how they will function together. Any effective national gender equality plan would ensure that these strategies are mutually reinforcing, apply a gendered, intersectional lens, and coordinate with provincial and territorial initiatives on the elimination of women’s inequality. V. INADEQUATE GOVERNMENTAL RESPONSE TO MISSING AND MURDERED INDIGENOUS WOMEN AND GIRLS Since 2006, UN treaty bodies have issued repeated recommendations on violence against Indigenous women and girls, including the issue of missing and murdered Indigenous women and girls. The Human Rights Committee,60 the Committee against Torture,61 the Committee on the Elimination of Racial Discrimination,62 and the Committee on the Rights of the Child have all made recommendations to Canada on the violence. 63 For instance, in 2015, the Human Rights Committee devoted two paragraphs to the issue of missing and murdered Indigenous women and girls, indicating its heightened concern about Canada’s failures to adequately address the root causes of the violence and improve the policing and criminal justice system’s response.64 Two other equal labour market participation and reduce poverty and violence, without also listing the anti-poverty strategy). 56 Canada, What We Heard, Shaping Canada’s National Housing Strategy (2016), online: 210 COMMENT: CEDAW COMMITTEE VOL. 14 reports have complemented these calls to action: the Human Rights Council’s 2013 working group report to Canada following Canada’s Universal Periodic Review65 and the UN special rapporteur on the rights of Indigenous peoples’ 2014 report following a mission to Canada.66 The CEDAW Committee has been the most active UN body on this issue. In the Committee’s 2008 review, it required Canada to report on steps taken to respond to the violence by 2010.67 In 2010 and 2011, the Committee found Canada’s response to be inadequate.68 Subsequently, the Canadian Feminist Alliance for International Action and Native Women’s Association of Canada requested that the Committee initiate an inquiry under Article 8 of the Optional Protocol to the convention.69 The Optional Protocol, to which Canada is bound, provides for individual 65 Human Rights Council, Report of the Working Group on the Universal Periodic Review Canada, UN Doc A/HRC/24/11 (28 June 2013), online: communication and inquiry mechanisms.70 The Committee can initiate an inquiry where it has “reliable information indicating grave or systematic violations” of CEDAW by the state.71 The Committee initiated the inquiry into missing and murdered Indigenous women and girls in Canada in 2012 and received permission from Canada to conduct an investigatory visit in 2013.72 This was the first time that a UN treaty body conducted an inquiry into allegations of grave or systematic human rights violations in Canada.73 A. Inquiry Findings under Article 8 of the Optional Protocol In March 2015, the CEDAW Committee released its inquiry report, finding Canada to be in violation of CEDAW. 74 According to its definition of discrimination under Article 1, interpreted in conjunction with other articles, the Committee found that Canada failed to: ensure the social and economic development and advancement of Indigenous women and girls under Article 3;75 sufficiently account for, and respond to, Indigenous women victims of violence in rural areas and on reserve under Article 14(1);76 take sufficient and appropriate measures to address gender stereotyping, including stereotyping in public institutions under Articles 2(f) and 5(a);77 70 Optional Protocol, supra note 9, art 8 at 83; see also Rules of Procedure, supra note 9, Rules 76-91, 121-25. 71 Optional Protocol, supra note 9. 72 2015 CEDAW Inquiry Report, supra note 69 at paras 15-17; see also Canadian Feminist Alliance for International Action and Native Women’s Association of Canada, Murders and Disappearances of Aboriginal Women and Girls: Report to the Human Rights Committee on the Occasion of the Committee’s Consideration of the Sixth Periodic Report of Canada (2015), online: 212 COMMENT: CEDAW COMMITTEE VOL. 14 act with due diligence to prevent, protect against, investigate and punish violence, and provide reparations to victims of gender-based violence as required under Articles 2(c), (e), and 15(1);78 and ensure that Indigenous women and girls are not discriminated against by public institutions under Article 2(d).79 In sum, the Committee declared that Canada had violated Articles 1, 2(c), (d), (e), (f), 3, and 5 (a), read in conjunction with Articles 14(1) and 15(1) of CEDAW.80 It concluded that these were grave violations pursuant to Article 8 of the Optional Protocol. 81 Canada’s protracted failure to coordinate an adequate cross-jurisdictional response to the violence contributed to this finding. 82 The Committee made thirty-eight recommendations to Canada to be implemented in a comprehensive, holistic way in response to the violence.83 B. Canada Still in Violation of the Convention The CEDAW Committee’s recommendations on murdered and missing Indigenous women and girls in its November 2016 Concluding Observations reinforce the recommendations made in the 2015 inquiry report (“inquiry recommendations”).84 The federal government’s decision to launch a National Inquiry into Missing and Murdered Indigenous Women and Girls was recognized as a positive development and as fulfilling one of the thirty-eight inquiry recommendations in the Committee’s inquiry report.85 However, the Committee was concerned that there was no plan or mechanism to implement the outstanding thirty-seven inquiry recommendations. 86 Additional, ongoing concerns include insufficient police oversight mechanisms and inadequate supports for witnesses.87 The CEDAW Committee requested that Canada implement all of the inquiry recommendations without delay.88 It made a number of requests relating to law enforcement and police, including that the National Inquiry investigate the role of police across jurisdictions and create a mechanism for independent review of cases where investigations appear to have been 78 Ibid at paras 207-09 (in violation of arts 2(c), 2(e)). 79 Ibid at para 210 (in violation of arts 2(c), (d), (e)). 80 Ibid at paras 210-12. 81 Ibid at para 214. 82 Ibid. 83 Ibid at paras 215-20. 84 2016 CEDAW Concluding Observations, supra note 1 at para 26. 85 Ibid. 86 Ibid at paras 26-27 (see 2015 CEDAW Inquiry Report, supra note 69 at para 216(D)(i)). 87 Ibid at para 26(d) 88 Ibid at para 27. VOL. 14 JOURNAL OF LAW & EQUALITY 213 inadequate. 89 The Committee also called on Canada to strengthen its partnership with Indigenous women’s organizations and human rights bodies during the National Inquiry process. 90 The Concluding Observations are the first formal communication to Canada on the status of its compliance with CEDAW since the 2015 inquiry. The conclusion that Canada has not acted on thirty-seven of the thirty-eight inquiry recommendations underscores Canada’s disregard for complying with its international human rights obligations. C. Socio-Economic Marginalization as a Root Cause of Violence Until the inquiry report, recommendations on the issue of missing and murdered Indigenous women and girls tended to focus exclusively on failures in policing and the criminal justice system.91 For example, the CEDAW Committee’s 2008 Concluding Observations did not include recommendations to Canada to deal with the root causes of the violence.92 Instead, they focused on police failures, including inadequate investigations.93 Policing and criminal justice failures cause and perpetuate the violence. However, there are other critical root causes, including the socio-economic marginalization of Indigenous women and girls. In the 2015 inquiry report, the Committee affirmed that the realization of Indigenous women’s economic, social, political, and cultural rights is needed to decrease their vulnerability to violence.94 It explicitly found that Canada’s failure to secure Indigenous women’s social and economic rights, such as access to education and housing, contributed to their disproportionate subjection to violence. 95 The inquiry report includes recommendations aimed at improving the socio-economic conditions of Indigenous women and girls.96 The CEDAW Committee reiterated in 2016 that Canada should act on these inquiry recommendations without delay. 97 The 2016 Concluding Observations expressly recommend that Canada address the socio-economic conditions that affect Indigenous women and girls on and off reserve, 89 Ibid at para 27. 90 Ibid. 91 All treaty body recommendations to Canada with the exception of the 2006 HRC recommendation have not mentioned socio-economic marginalization. See 2006 HRC Concluding Observations, supra note 26 at para 23. 92 2008 CEDAW Concluding Observations, supra note 16 at paras 31-32. 93 Ibid. 94 2015 CEDAW Inquiry Report, supra note 69 at para 203. 95 Ibid. 96 Ibid at para 216(B)i-iv. 97 2016 CEDAW Concluding Observations, supra note 1 at paras 27, 29. 214 COMMENT: CEDAW COMMITTEE VOL. 14 including their high rates of poverty, poor health, inadequate housing, low school-completion rates, and high unemployment rates. 98 The Committee called on Canada to promote and apply the principles of the United Nations Declaration on the Rights of Indigenous Peoples in addressing the socio- economic marginalization of Indigenous women and girls.99 VI. CONCLUSION The CEDAW Committee’s 2016 Concluding Observations provide a comprehensive overview of the key women’s rights issues in Canada today. They address Canada’s continued inaction developing a treaty implementation mechanism and the need for a national gender equality plan. The Concluding Observations also provide the most recent commentary from UN treaty bodies on Canada’s response to missing and murdered Indigenous women and girls. The recommendations build on and overlap with its own jurisprudence as well as jurisprudence from other treaty bodies. Ultimately, the Committee’s recommendations demonstrate that the state is failing to use intergovernmental coordination and national machinery to adequately respond to the discrimination against women and girls in Canada today. 98 Ibid at para 29. 99 Ibid at para 29(c). United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UNGAOR, 61st Sess, UN Doc A/RES/61/295 (2007).