Update by Erin Brandt, Cofounder

Having a child is an exciting time, and comes with new challenges and commitments, including the decision to breast/chest feed or not. The World Health Organization recommends exclusive breastfeeding for six months, and continuing breastfeeding or breastmilk in the diet until 2 years or more. If paid pregnancy/parental leave in most Canadian workplaces is 12-18 months (depending on whether the employee elects standard or extended EI benefits), this means that many parents return to work while still breast/chest feeding.

This raises the question of whether an employer has a duty to accommodate a breast/chest feeding employee, and if yes, to what extent. The federal cases of Cole v Bell Canada, 2007 CHRT 7 and Flatt v Canada (Attorney General), 2015 FCA 250 explore this issue, looking at similar principles, but coming to different results.

Background

In the first case, Ms. Cole was an employee of Bell Canada. Upon her return to work at the end of her maternity leave, she asked Bell to provide her a work schedule that would enable her to go home and breastfeed her child at 4:30 pm every day. Her son had a medical condition, and her son’s medical team recommended she breastfeed as long as possible to strength her son’s immune system.

Ms. Cole took a 1-year maternity leave, and was initially accommodated upon her return; though she was asked for a number of medical notes to confirm her need for the requested accommodation, which her doctor supported. When Ms. Cole’s son was over 2 years old, her employer informed her that they would no longer support her request for accommodation, although Ms. Cole still managed to arrange her schedule to be home to breastfeed daily at 4:30 pm. When Ms. Cole’s son was over 3 years old, the employer determined that there was no longer any documentation on file to support the continued accommodation and notified Ms. Cole that the restrictions with respect to shift scheduling were being removed, though at that time, Ms. Cole was still breastfeeding daily at 4:30 pm. She subsequently filed a human rights complaint.

In the second case, Ms. Flatt was an employee of the Treasury Board of Canada. Following her one-year maternity leave, she asked permission to telework in order to continue breastfeeding her third child. The parties discussed possible accommodations over a period of time, but failed to establish a suitable work schedule that would meet both their needs. Of note is that Ms. Flatt was seeking paid time off to breastfeed, without forfeiting her lunch breaks, which the employer rejected. While their discussions were ongoing, Ms. Flatt extended her maternity leave an additional 7 months (unpaid).

Decision

Ms. Cole focused on the proposition that she was discriminated against on the basis of her sex. In its decision, the Canadian Human Rights Tribunal (the “Tribunal”) recognized at paragraph 61:

In their working lives, women face particular challenges and obstacles that men do not. A woman who opts to breastfeed her baby takes on a child-rearing responsibility which no man will truly ever face. In order for a working mother to bestow on her child the benefits that nursing can provide, she may require a degree of accommodation. Otherwise, she may end up facing a difficult choice that a man will never have to address. On the one hand, stop nursing your child in order to continue working and make a living for yourself and your family. On the other hand, abandon your job to ensure that your child will be breastfed. This dilemma is unique to women employees and results in their being differentiated adversely, in the course of their employment. It has the potential to create precisely the type of obstacle that would deny women an "opportunity equal to others, to make for themselves the lives they are able and wish to have" (s. 2 of the Act).

The Tribunal found that Ms. Cole’s status as a nursing mother was integral to her requests, and the denial of those requests had a unique impact on her as a woman, and more specifically, as a nursing mother. While the employer’s requests for information from Ms. Cole focused on Ms. Cole providing medical proof to support her request, the employer should instead have considered Ms. Cole’s request as that of any mother making a request to her employer for measures that would enable her to continue breastfeeding her child. The employer could have asked for confirmation that Ms. Cole had in fact given birth, or was still breastfeeding, but the act of breastfeeding is not a disability, and Ms. Cole should not have had to prove that nursing her child was necessary.

The Tribunal ultimately found that the employer never tried to accommodate Ms. Cole’s request as a mother to breastfeed her child, and that Ms. Cole’s complaint of discrimination on the basis of sex was substantiated. The Tribunal ordered the employer to implement a breastfeeding policy and to pay Ms. Cole $5,000 to compensate her for her pain and suffering, $2,000 in additional special compensation as well as for wages lost while obtaining medical notes.

In contrast, the Federal Court of Appeal (the “FCA”) took a different approach in reviewing a decision made by the Public Service Labour Relations and Employment Board (the “Board”) which dismissed Ms. Flatt’s discrimination complaint. In that case, the Board found that while lactating is a physical condition, an immutable characteristic, breastfeeding is different – “it is a subset of and an expression of a larger complex of factors stemming from the relationship between a parent and an infant” (para 23 citing para 150 of the Board’s decision), and that discrimination relating to breastfeeding, if it is discrimination, is discrimination on the basis of family status rather than sex or gender.

The Board applies the Johnstone test for family status discrimination:

… in order to make out a prima facie case where workplace discrimination on the prohibited ground of family status resulting from childcare obligations is alleged, the individual advancing the claim must show:

1. that a child is under his or her care and supervision;

2. that the childcare obligation at issue engages the individual’s legal responsibility for that child, as opposed to a personal choice;

3. that he or she has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible, and

4. that the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation.

The Board concluded that Ms. Flatt had not established a prima facie case of discrimination and even if she had, that the employer had accommodated her to the point of undue hardship. In upholding this conclusion the FCA:

• Accepted that there could be cases where breastfeeding is seen as part of a mother’s legal obligation to care, and more precisely, to feed her child;

• Accepted Ms. Flatt’s position that breastfeeding can fall under both sex and family status discrimination; and

• Found that the Board did not err in its ultimate conclusion that Ms. Flatt was breastfeeding her child out of a personal choice, and that discrimination, if it was discrimination, was discrimination on the basis of family status.

The FCA further commented that to make a case of discrimination on the basis of sex or family status related to breastfeeding, an applicant would have to provide proper evidence, such as information addressing the particular needs of a child or particular medical condition requiring breastfeeding, the needs of an applicant to continue breastfeeding without expressing her milk, and the reasons why the child may not continue to receive the benefits of human milk while being bottle-fed. In Ms. Flatt’s particular circumstances, the FCA concluded that breastfeeding during working hours was not a legal obligation towards her child, but a personal choice, and that Ms. Flatt made no reasonable efforts to find a viable solution.

Before concluding, and despite finding against Ms. Flatt, the FCA clarified that its decision should not be seen as trivializing breastfeeding. It acknowledged the encouragement provided by the medical profession and numerous health organizations to mothers to breastfeed babies and recognized the benefits of human milk on the immune system of young children. It emphasized that a mother’s choice to breastfeed must be respected, but also the rights of mothers and employers must be balanced, including the basic principle that one must be at work to get paid.  

Key Take Away for Employees

Both cases recognize the benefit of breastfeeding to mothers and babies and support the principle that an employee is entitled to accommodation for breast/chest feeding. But an employer is not legally required to provide paid time off to accommodate a personal preference to breast/chest feed, and the extent of the required accommodation depends on the employee and baby’s unique circumstances. Ultimately, employees must work together with their employer to establish a reasonable accommodation that meets both the needs of the parent/child and the business.

Key Take Away for Employers

There are many good business reasons to build an equitable workplace that will support and accommodate breast/chest feeding parents upon their return to work, including promoting employee retention and wellness. We recommend establishing a clear policy that confirms breast/chest feeding will be reasonably accommodated, and which outlines how an employee should seek accommodation. We recommend approaching accommodation discussions with flexibility in mind, since each parent/baby may have different medical needs or personal preferences. Ultimately an employer’s legal duty to accommodate ends where an accommodation would cause the employer undue hardship. This means that both employers and employees must act reasonably in reaching an appropriate accommodation.