Is Refusing to Accommodate An Employee's Breastfeeding Schedule Discrimination On The Basis Of F
Is an employer obligated to accommodate the breastfeeding schedule of an employee or, if it fails to do so, has it discriminated against the employee on the basis of sex and family status? As a recent Federal Court of Appeal decision illustrates, the answer is the employer probably does not have to accommodate the breastfeeding schedule.
In Flatt v Attorney General of Canada, following a maternity leave absence, the employee returned to work and requested permission to telework so that she could continue to breastfeed her child. The employee and employer were unable to reach an agreement on a telework schedule and permission was denied. The employee grieved the denial. The employee claimed that the employer's failure to accommodate the breastfeeding schedule was discrimination on the basis of sex and family status. Her initial grievance was dismissed and the employee appealed the decision to the Federal Court of Appeal.
A unanimous panel dismissed the appeal. In order to establish a prima facie case of discrimination, the employee was required to establish:
(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.
The employee was able to establish that she had a legal obligation to care for the child but was unable to demonstrate that she had a legal obligation to breastfeed the child. Evidence on this point demonstrated that she wished to breastfeed because she believed that doing so would strengthen the immune system of the child. Based on this evidence, the court ruled that breastfeeding was a personal choice that did not give rise to discrimination and, as such, it was not necessary for an employer to accommodate the choice.
The court, however, did not make an all encompassing statement that denial of every case of breastfeeding would not be discrimination. Rather it left the door opened for the argument to be advanced again. It stated:
It seems to me that to make a case of discrimination on the basis of sex or family status related to breastfeeding, an applicant would have to provide proper evidence, foreseeably divulging confidential information. For example, such information may address the particular needs of a child or particular medical condition requiring breastfeeding; the needs of an applicant to continue breastfeeding without expressing her milk; and the reasons why the child may not continue to receive the benefits of human milk while being bottle-fed. This list of examples, of course, is not exhaustive. The purpose of such evidence would be to
establish that returning to work at the workplace is incompatible with breastfeeding.
The Lesson for Employees: If you wish your employer to accommodate your breastfeeding schedule, you will have to establish a strong case that breastfeeding your child is not only a personal choice but also that there are specific circumstances, likely related to the child's health, that require breastfeeding. Failure to do so, will likely allow your request to be denied.
Flatt v Attorney General of Canada, 2015 FCA 250 https://www.canlii.org/en/ca/fca/doc/2015/2015fca250/2015fca250.pdf
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