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Supreme Court of Canada refuses leave to appeal case on the duty to accommodate mother’s breastfeeding schedule

Supreme Court of Canada refuses leave to appeal case on the duty to accommodate mother’s breastfeeding schedule

By June 18, 2016July 29th, 2019No Comments


Childcare-related familial obligations might trigger the duty to accommodate an employee under current Ontario Human Rights Legislation. However, absent a medical condition that requires breastfeeding, the duty to accommodate an employee’s breastfeeding schedule will not normally be required, a recent court case says.

In Flatt v. Treasury Board (Department of Industry), an employee of Industry Canada alleged discrimination based on sex and family status after her employer refused to allow her to work full-time from home, in order to breastfeed her child. [2] The employer had a work-from-home policy that allowed the employees to work from home part of the time, but was not meant for a long-term accommodation of family and child-rearing responsibilities. After the employee returned from a one-year maternity leave, she requested accommodation in her schedule to continue breastfeeding her child, but the parties were unable to agree on a satisfactory arrangement and Ms. Flatt brought a discrimination suit.

By refusing leave to appeal, the Supreme Court of Canada upheld the Federal Court of Appeal’s decision, which stated that the requirement for physical presence at work does not constitute sex or family-status discrimination, even if it negatively impacts an employee’s breastfeeding schedule. By doing so, the court also affirmed the Johnstone test for discrimination, which requires the childcare responsibility at issue to engage an actual legal responsibility for the child, and not a mere personal choice in regards to upbringing and caring for the child. The test also requires the employee to make efforts to meet the obligations via reasonable alternative solutions, and that no such solution be reasonably accessible. In this case, the employee was held to not have made a reasonable effort to find another viable solution, and breastfeeding preference was found to be a mere personal choice, rather than an actual legal duty, absent a medical condition making it such.

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Flatt v. Treasury Board (Department of Industry), 2015 FCA 250


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