Are women being Accomodated into unemployment?

The Federal Court of Canada in Attorney General of Canada v. Johnstone (Johnstone)has come out with a decision strengthening an employee's right to be accommodated by an employer when their duties as a parent conflict with the duties of their job. In essence, inadequate accommodation by the employer may result in a successful "family status" discrimination claim. [The full text of the Federal Court's decision can be found here.] The decision raises some questions, and some concerns. It is, fortunately, not as shockingly silly as the British case of Ms. Tilern DeBique, who joined the army and then promptly launched a (partly successful) human rights complaint that the Army didn't sufficiently accommodate her child care needs, but it nonetheless has implications that haven't been adequately considered. Some commenters have raised issues with the decision both philosophically and practically. From the philosophical end comes from Matt Gurney of the National Post:

"The Canadian Border Services Agency should be ashamed of itself [for not providing the alternative schedule] ...[b]ut even a reasonable request should not, if denied, automatically morph into claims of a rights violation, rectifiable only by the power of the law. The CBSA’s refusal to play nice was a good reason for Ms. Johnstone to go looking for work with a more reasonable employer. It was not a good reason to stretch yet further the definition of what constitutes a human right in Canada."

The practical concern is from employment law guru Howard A. Levitt in his article, "Women Face Tougher Time Finding Jobs After Ruling Affirms Flexible Shift Right". In it he worries that

"young Canadian women will face increased difficulty finding employment. I believe one consequence of the decision, which is designed to assist working women with children, will be that employers will go through paroxysms to avoid hiring any women of child-bearing age. [...] [The] decision could have ramifications beyond child care. Family status includes all family relationships. A large portion of the workforce can assert they have child care or elder care needs... One can anticipate, with the advent of this decision, many employees professing child care or elder care requirements in order to be permitted to work from home or obtain shifts better suited to their lifestyle. And it will be difficult for an employer to prove they are not bona fide." And what of the employees who historically had these preferred shifts, or who have equally or more legitimate needs that they cannot place within a human rights rubric, and will have their preferences shunted aside on the superseding legal ground of human rights accommodation?

Levitt raises some excellent points, but the one that leaps out at me is the last-mentioned: the creation of two classes of employee: those whose personal, out-of-the-office needs can be enforced by so-called human rights law and those that can not. Moreover, it reinforces a class distinction in employment law between those who are self-employed and those who are employed by others. The self-employed individual is responsible for everything in their own life: child care, elder care, illness, and so forth. Put bluntly, if they aren't at work then they don't eat, they can't pay their rent or their mortgage, (and so on). Yet they still have to pay taxes, and they have to pay market price for goods and services, which means that they are paying more of their income to provide a benefit to parties that they themselves will never have. This may operate even within a workplace: many government employers like Ms. Johnstone's are divided between staff and contract employees. The former receive the secure jobs and myriad benefits and rich pay scales(which are so often viewed with a jaundiced eye by the public); the latter receive no job security and often poor pay. If yet another level of benefit is to accrue to a government employee it stands to reason that in this era of shrinking budgets the burden will have to be borne by contract employees: there will simply be few if any other ways for the government service in question to provide the services at the same time that it provides such extensive benefits to its employees. So, within a given government workplace, there will be employees with excellent pay and benefits, and whose rights needs must be accommodated ... and the contract "employees" who are get none of this.

So, like EI and parental leave there is an artificial favouritism at play, tilted towards those with "employed" status. Further (and as noted by some of the commenters under Gurney's Post article, even within an employed workforce there will be problems: those with family obligations will be accommodated, lest a human rights complaint be launched. Single people or the married / cohabitating childless will be thus forced to accept what is left.

Note: For an excellent summary of the case and the Federal Court's holding, and for the background law and differing tests in the area, please see "Federal Court rules on family status accommodation" by Lauren Cowl and Sunil Kapur of McCarthy Tétrault LLP.