Human rights commission decision harms families

February 16, 2011

CALGARY, AB, Feb. 16, 2011/ Troy Media/ – Many Human Rights Commission decisions produce unintended and harmful consequences. One example is Johnstone v. CBSA, in which the Canadian Human Rights Commission (CHRC) made it easier for employees to get their employers over a barrel.

For example, the CHRC – in a decision that will unintentionally make it more difficult for young men and women with families to find good employment – awarded Fiona Johnstone over $35,000 in damages, plus lost wages and benefits because her employer would not bend over backwards to accommodate her request for a specific work schedule after she returned from maternity leave.

Unwilling to compromise

Johnstone has worked for the Canadian Border Service Agency (CBSA) at Pearson International Airport since 1998. The CBSA’s operations at Pearson run 24/7 and employees normally work rotating shifts. Before returning from maternity leave in 2005, Johnstone asked the CBSA to treat her differently by providing her with “static shifts”. She requested three fixed 13-hour shifts per week (totalling 39 hours), corresponding with the only three periods when she could arrange for family members to care for her child.

The CBSA was willing to accommodate Johnstone by providing her with three 10-hour static shifts and a four-hour shift on a fourth day. But Johnstone was unsatisfied with this 34-hour compromise. She wanted to continue to work full-time hours, to preserve her pension entitlements, promotion opportunities, and income. She wanted family members – not day-care providers – to care for her child.

In effect, Johnstone wanted to be insulated from the natural consequences of her own life-choices. And, more significantly, she wanted the Canadian taxpayers, her fellow employees, and men and women of similar circumstance to foot the bill for her life-choices. So, she complained to the CHRC.

Johnstone’s complaint to the CHRC was successful. She was awarded compensation for “lost” wages and benefits, including overtime and pension contributions, for work she did not do and for wages and benefits she did not earn. She was also given a total of $15,000 for pain and suffering because she was embarrassed that her complaint was construed as a human-rights case. She was awarded a further $20,000 in special damages for the “wilful and reckless conduct” of the CBSA because it sought a compromise position instead of acquiescing to her request for special treatment. In short, she experienced a financial windfall because she refused to find childcare outside of her family.

However, as the old adage goes, there is no such thing as a free lunch. Since the CBSA is a government agency, any costs awarded against it will ultimately be paid by Canadian taxpayers. In addition, Johnstone’s fellow employees will shoulder some of the burden. Since Johnstone was unwilling to work undesirable hours, her fellow employees had to pick up the slack and work those hours in her place. Granting Johnstone a greater degree of flexibility and choice means that other CBSA employees suffered a corresponding lesser degree of flexibility and choice.

Why hire employees with families?

Even though the CHRC carefully stated that its decision applied equally to male and female care-givers, it is doubtful that all men and women will be affected in the same way. Men and women with families will bear more of Johnstone’s burden than men and women who do not. Such employees might temporarily leave the workforce to become care-givers or make costly demands, such as “static shifts”. And as a direct and unintended result of this CHRC decision, employers cannot be certain that they will receive the same return on costs devoted to training and staffing employees with families and those without. It will be easier to simply look past the job applications of qualified applicants with families. After all, when faced with viable competing alternatives, why not hire an employee that comes with less risk?

Ultimately, it is difficult to see who the real winner is in this CHRC decision. The Canadian taxpayer and the CBSA lose. Johnstone’s fellow CBSA employees lose. And many qualified men and women lose.

Perhaps the real winners are those employers looking for an excuse to avoid hiring employees who have families. Unfortunately, this CHRC decision unintentionally provides ample justification for the alienation of the very demographic of which Johnstone is a member.

Derek James From is a Student-at-Law with the Canadian Constitution Foundation.

No related posts.