Editorial: An apt judicial censure

It’s hard enough finding and affording childcare in this country, let alone negotiating schedules around work hours.

A new Superior Court ruling demonstrates how tricky the issue can be and the legal consequences for employers who make it particularly difficult. Last week, Superior Court Justice Susan Healey ordered Botony Dental Corp. to pay $20,000 in human rights damages for discrimination on the basis of family status as part of a civil action for wrongful dismissal. As part of her decision in Partridge v. Botony Dental Corp., she also awarded more than $42,000 for wrongful dismissal.

The case dealt with a dental hygienist turned office manager who returned from maternity leave in 2011. While Lee Partridge, represented in the litigation by Michael Wright and Christopher Perri, had worked from 9 a.m. to 5 p.m. as office manager prior to her leave, the employer decided she’d return to working as a hygienist after coming back. Initially, the employer said she’d be working four days a week from 8 a.m. to 3 p.m. as a hygienist.
After Partridge balked, the demand changed to having her work until 6 p.m. several days a week, a situation Healey noted created significant difficulties for her childcare arrangements.

While the employer asserted various misdeeds by Partridge it argued amounted to just cause for dismissal, Healey found it was a case of wrongful termination. And noting the significant difficulties Partridge faced in being able to work a schedule the judge found wasn’t a bona fide occupational requirement, Healey determined it was an appropriate case to award human rights damages.

The case, then, is significant as a statement by at least one judge about the reasonableness employers should show in such situations. “Particularly where the discrimination has ultimately taken the form of dismissal, this particular breach affects a group of individuals who typically require childcare arrangements out of economic motivation,” wrote Healey.

“The discrimination not only has the effect of causing injury to dignity, feelings and self-respect, but may have an economic impact on individuals who can often least afford it. The Court’s censure is warranted by way of an award that will act as a deterrent to employers who are unwilling to accommodate childcare arrangements, except where legitimate, justifiable grounds exist for being unable to do so.”

It’s helpful to see a judge adding to the case law on discrimination on the basis of family status. With employers sure to have to have their own concerns about this issue, it’s an area that’s likely to be subject to continued litigation and is ripe for further judicial elaboration.
Glenn Kauth

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