Breastfeeding and the duty to accommodate, The Law Times (January 25, 2016, p. 8)

04 Jan Breastfeeding and the duty to accommodate, The Law Times (January 25, 2016, p. 8)

BREASTFEEDING AND THE DUTY TO ACCOMMODATE
By Nikolay Y. Chsherbinin

It is undisputed the practice of breastfeeding must be promoted and protected. Since the ability to breastfeed is unique to the female gender, a woman who opts to breastfeed may be subjected to adverse treatment in a workplace, something her male colleague would never face. An employer’s failure or refusal to accommodate a nursing employee’s breastfeeding needs may give rise to a discrimination complaint.

A case in point is Flatt v. Canada (AG), where the Federal Court of Appeal (FCA) grappled with issues stemming from the difficulties of balancing motherhood and career. Having concluded breastfeeding is a personal choice and not a legal obligation, the FCA resolved discrimination on that basis is rooted in family status and not sex.

In Flatt, Laura Marie Flatt worked full-time with the Spectrum Management Operations Branch of Industry Canada (“Spectrum”), which supervises and manages the radio frequency spectrum in Canada.

In September 2007, September 2009 and March 2012, Ms. Flatt took a one-year maternity leave. Having breastfed her third child for a year, Ms. Flatt decided that she would like to continue breastfeeding for another year. Therefore, she sought Spectrum’s permission to telework full-time from home between 6:00 a.m. to 2 p.m.

Despite being offered a number of possible arrangements, Ms. Faltt, ultimately, reverted to her original request, which Spectrum was unable to accommodate.

On March 22, 2013, Ms. Flatt launched a grievance with the Canada Public Service Labour Relations and Employment Board (“Board”) on the grounds of sex and family status for Spectrum’s failure to accommodate her desire to breastfeed her child.

The Board acknowledged that lactation is a physical condition, being an immutable characteristic, while breastfeeding is a woman’s personal choice influenced by a variety of physical, personal and social factors. It went on to conclude that breastfeeding is an expression of family status, rather than the female gender, which flows from the mother-infant relationship.

Indeed, while a woman’s biological capacity to breastfeed is a natural function, breastfeeding per se is not an entirely natural instinct, but an acquired skill. An argument that a woman’s capacity to breastfeed should equate to a legal obligation to nourish an infant through breastfeeding is untenable. It casts stigma on women who cannot or do not wish to breastfeed and has a dangerous potential of stereotyping women by implying that every good woman must be a breastfeeding mother.

It is helpful to keep in mind that feeding an infant with formula, which has nourished millions of children for decades, does not automatically result in an inferior health condition. Hence, breastfeeding is not an immutable characteristic, but a parental choice.

On appeal, the FCA upheld the Board’s decision.

It recognized that there could be cases where breastfeeding can be seen as part of a mother’s legal obligation to feed her child.

It explained that to make a case of discrimination on the basis of family status related to breastfeeding, a complainant would have to provide evidence and foreseeably divulge personal information. The purpose of such evidence would be to establish that returning to work is incompatible with breastfeeding.

The FCA said that evidence should strive to identify a child’s medical condition requiring breastfeeding, address the particular needs of a child, and clarify the reasons why a child may not continue to receive the benefits of human milk while being bottle-fed.

The FCA confirmed that the four-prong test it propounded in Canada (A.G.) v. Johnstone, 2014 FCA 110 is applicable to cases of discrimination on the basis of an employer’s failure to accommodate breastfeeding. In order for a complainant a prima facie case of workplace discrimination, the test requires:

(1) that a child is under her parental care and supervision;

(2) that the childcare obligation at issue engages her legal responsibility for that child, as opposed to personal choice;

(3) that she has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions; 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.

This test is both flexible and contextual, because it is applied in cases with many factual situations involving various grounds of discrimination.

Having resolved that breastfeeding during working hours is not a legal obligation towards the child, the FCA found that Ms. Flatt’s evidence did not meet the second branch of the Johnstone test and, as such, she had not made her case of prima facie discrimination.

Accommodating the need of a nursing employee is appropriate and desirable. It gives rise to a vexing question: whether to pay an employee for lactation breaks. The answer requires balancing the rights of nursing mothers and that of employers, while having regard to the fundamental principle that one must perform work in exchange for pay.

At one point, Ms. Flatt sought Spectrum’s accommodation that would have permitted her to take 45 minutes of paid lactation breaks, without forfeiting her lunch breaks. Forty-five minutes of paid lactation break for every 8-hour working day amounts to 24 days of paid leave each year.

This type of generosity may be unaffordable for small and medium-size employers. On this basis alone, employers would be able to argue that a nursing employee cannot be accommodated without undue hardship. On a practical level, to compensate lactation breaks would give rise to resentment among the nursing employee’s co-workers, because of possible perception of special treatment. This can be especially true for adoptive mothers and women who do not breastfeed, whether by choice or necessity.

Flatt recognized that breastfeeding is a woman’s personal choice, which could give rise to a form of “family status” discrimination. The onus is on working-outside-the-home mothers to make a prima facie case of discrimination. Medical evidence to support a woman’s choice to continue breastfeeding beyond maternity leave is a must.

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