01 Feb Breastfeeding and the Duty to Accommodate
Everyone wants the best for their children. From day one, all parents want their child to be happy and healthy and strive to provide for their child in the best way possible. Additionally, by law parents are obligated to ensure that their children receive adequate care and nurturing. Childcare involves, among other things, making sure your child is clothed, supervised and fed. One way in which some mothers choose to provide the latter of these childcare essentials is through breastfeeding. According to Statistics Canada, nearly 90 per cent of mothers breastfeed their baby, and many do so for six months or longer.
What the Law Says About Breastfeeding
While only British Columbia and Ontario have laws that explicitly protect breastfeeding as a right, the Canadian Human Rights Act prohibits discrimination based on sex, and the Canadian Charter of Rights and Freedoms guarantees “gender equality” under the law.
Women who choose to breastfeed face unique challenges in balancing the needs of their child and their employment obligations. However, the Ontario Human Rights Commission (OHRC) explains that, “women should not have to choose between their own health, or the health of their baby, and their jobs, housing or being able to take part in a service.”
Therefore, accommodation to the point of undue hardship for breastfeeding mothers is required by the OHRC. “The goal of accommodation,” explains the Commission, “is to help everyone have equal opportunities, access and benefits.” You can read more about the basics of about breastfeeding and parental leave here.
The case of Cole v Bell Canada (2007) illustrates employers’ duty to accommodate breastfeeding mothers.
Cole v Bell Canada (2007) – Breastfeeding & The Duty To Accommodate
Following her maternity leave, Hayley Cole, an employee of 13 years with Bell Canada, asked for a scheduling accommodation so she could breastfeed her son. Her son had been born with a heart defect and her doctor recommended that she breastfeed him as long as possible in order to help the baby’s immune system. Cole developed a schedule to nurse at 4:30 p.m. every day since she usually worked from 8 a.m. until 4 p.m. However, her shift occasionally ended at 4:15 p.m. and so she asked to regularly take one hour unpaid personal time off so she could nurse him by 4:30 p.m.
Her request was ignored and so Cole sought a firm 8 a.m. to 4 p.m. work schedule. Bell asserted that this request affected seniority rights and that they would need medical information in order to provide this accommodation. After submitting multiple doctor’s notes, Cole was granted accommodation for one year, not on the grounds of needing to breastfeed her son, but as a preventative measure against mastitis. After a year of accommodation, Bell asked for updated medical information if Cole wanted to seek ongoing accommodation.
CHRT Cole v Bell Canada Findings
In response to her human rights complaint, the CHRT found that Bell did not uphold its duty to accommodate its employee and ruled:
- Discrimination towards an employee because she is breastfeeding is a form of sex discrimination.
- A mother’s request for accommodation to breastfeed should not be treated as a medical/disability issue.
- A woman does not need to submit supporting evidence to demonstrate a need to nurse her baby at specific times.
- A baby’s health should be of no consideration in assessing a request to accommodate breastfeeding. A mother’s motivations for breastfeeding are of no relevance to such a request.
Furthermore, the Tribunal expressed that Cole’s request for a fixed schedule did not impose any hardship on Bell, let alone undue hardship. Bell was ordered to pay damages of $5,000 plus the cost of time Cole lost for getting medical notes.
Best Practices To Accommodate Pregnant & Breastfeeding Women
In order to foster a respectful and equitable work environment, employers should be supportive, flexible, and creative in developing accommodations for pregnant and breastfeeding women. Possible accommodations may include:
- flexible work hours;
- different job or duties;
- part-time work; and
- longer or extra breaks during which to nurse
Employers should discuss options with their employees early and openly, and be prepared to change arrangements as time goes on.
Workplace Policies for Pregnant or Breastfeeding Women
If your employee is requesting accommodation for childcare duties, KCY at LAW will help you develop fair and respectful workplace policies in line with Canadian law. If you have been discriminated against at work because you are pregnant or breastfeeding, our expertise in employment law will help you get the compensation you deserve. Call us today at (905) 639-0999 or contact us online to find out more.