Breastfeeding during working hours was not legal obligation towards child under employee’s care

COLLECTIVE AGREEMENT

Breastfeeding during working hours was not legal obligation towards child under employee’s care

Employer refused grievor’s request to telework five days per week following maternity leave in order to continue breastfeeding. Union brought unsuccessful grievance alleging failure to accommodate and discrimination on grounds of sex and family status, contrary to collective agreement and Canadian Human Rights Act. Employee brought application for judicial review. Application dismissed. Employee did not make case of prima facie discrimination and board’s application of facts to Johnstone factors was reasonable. Employee did not meet burden on second and third factors of Johnstone test, which were that she has legal obligation to care for child and that she had made reasonable efforts to meet her obligation through reasonable alternative solutions. Breastfeeding during working hours was not legal obligation towards child under employee’s care, it was personal choice. Employee made no reasonable effort to find viable solution as she never addressed employer’s reasonable concerns with her proposal to leave office twice a day for 45 minutes to breastfeed her child during paid hours.
Flatt v. Canada (Attorney General) (Nov. 10, 2015, F.C.A., Johanne Trudel J.A., A.F. Scott J.A., and Mary J.L. Gleason J.A., File No. A-557-14) 260 A.C.W.S. (3d) 846.