Government’s refusal to accommodate breastfeeding employee not discrimination: court ruling

The federal government’s refusal to accommodate a breastfeeding employee does not constitute discrimination, the Federal Court of Appeal has ruled.

In the decision released this week, the court upheld a previous decision by the Public Service Labour Relations Board and dismissed Laura Marie Flatt’s application for judicial review.

Flatt, who worked for Industry Canada, wanted to work from home for another year after her year-long maternity leave ended so that she could continue to nurse her third child. After discussions with her employer reached an impasse, Flatt filed a grievance on grounds of discrimination on the basis of sex or family status.

Flatt had been able to make arrangements to “telework” following her first and second maternity leaves, Sept. 2007-2008 and Sept. 2009-2010, respectively, according to court documents.

She had argued that both her productivity and morale would improve once she eliminated her two-hour commute to the Burlington, Ont., office, and there would be less “stress and worry with the needs of balancing work, personal and family [needs].”

Flatt began her third leave in March 2012. She approached her employer in November of that year saying she wanted to continue to breastfeed her baby and proposing a similar arrangement.

“In order to facilitate this, I would need to have my work duties modified to such that I can nurse him at 8:00 am. 12:00 pm and 2:30 pm,” she wrote in an email. “To make this possible, it would be greatly appreciated if I could work full time from home for the hours of 6am-2pm.”

Flatt said the two-month wait for a reply from her employer was “stressful.”

In January 2013, Industry Canada declined the request and offered her the option of taking an extended leave without pay, as is provided for in her collective agreement, but Flatt said that would place “financial hardship” on her family.

In the end, Flatt agreed to take unpaid leave from March to July 2013.

“I felt that it was my only recourse to my situation,” she said in an email to her supervisors, though the parties continued back-and-forth discussions.

When they couldn’t reach an agreement, she submitted her complaint in March 2013.

“Management has discriminated against me on the grounds of sex and family status when they failed to comply with the Canadian Human Rights Act regarding my request for accommodation,” she alleged. “I have a need to change the way I work because of breastfeeding. Management has forced me into an unsuitable situation and the hardship of having to take leave without pay.”

The Public Service Labour Relations Board disagreed.

“A parent’s legal responsibility is to nourish his or her child. How a parent fulfills that responsibility is a question of choice. Breastfeeding is one such choice, but it is not the only one,” board member Augustus Richardson wrote in a Nov. 2014 decision dismissing Flatt’s grievance. “There was no evidence of any physical condition or illness that made breastfeeding a necessity.”

The board also found that Flatt’s employer had made reasonable efforts to accommodate her.

In its ruling this week, the Federal Court of Appeal took pains to point out that Flatt had every right to make the choice she did.

“The applicant chose to breastfeed her children and respect must be had for her decision,” the three-judge panel wrote. “This case is not about that choice but rather about the difficulties of balancing motherhood and career. It is about balancing the rights of mothers and that of employers having regard to the basic principle that one must be at work to get paid.”

It’s not immediately clear whether Flatt has any other avenues of appeal left to her. Yahoo Canada News has reached out to Shields Hunt, the law firm that represented her.