The right to breastfeed in public has made headlines of late, but the Federal Court of Appeal's decision in Flatt v. Attorney General of Canada, 2015 FCA 250 makes it clear that choosing to breastfeed in most instances is just that – a choice, and not one that will necessarily be protected by human rights legislation in the context of work obligations.

Ms. Flatt is a unionized employee of the Treasury Board of Canada (the "Employer"). When her third child was born she took a oneyear maternity leave. Following this leave, she requested permission to "telework" (i.e. work from home or an office closer to her home) fulltime so that she could continue to breastfeed her child for one year. The Employer had a telework policy that permitted some employees to telework for part of the workweek, which Ms. Flatt had utilized following the births of her first two children.

The Employer refused Ms. Flatt's request to fulltime telework. The parties attempted to arrange a work schedule that met both their needs, but ultimately were unable to agree. Ms. Flatt filed a grievance claiming that the Employer had discriminated against her on the basis of sex and family status when it refused to permit her to telework full-time so that she could breastfeed her child.

The Board dismissed the grievance, finding that breastfeeding was not "immutable", but was a personal choice. Ms. Flatt sought judicial review of the Board's decision. Ms. Flatt argued that breastfeeding is part of a mother's legal obligation to nourish her child and thus the Employer's refusal to permit her to telework from home was discriminatory.

The Court concluded that to make a case of discrimination on the basis of sex or family status related to breastfeeding, proper evidence would be required. The purpose of such evidence was to establish that returning to work was incompatible with breastfeeding.

In this case the Court noted that Ms. Flatt had provided no evidence that her child had a particular need or medical condition that required breastfeeding. She provided no evidence that she could not express her milk nor explain why the child could not receive expressed breast-milk from a bottle.

The Court concluded that Ms. Flatt's evidence did meet the second element of the family status test – that breastfeeding during work hours is a legal obligation – and concluded that breastfeeding in this case was a personal choice. The Court held that Ms. Flatt also failed to show that she had made a reasonable effort to meet this legal obligation. When negotiations with her Employer failed, she simply abandoned the process and filed a grievance, reverting to her original request for full-time telework.

The Court made note that its decision should not be understood as trivializing breastfeeding, which is a commendable choice. Rather, the Court emphasized that "[i]n the case of breastfeeding, the onus is on the working outside-the-home mother to make a prima facie case of discrimination. Unfortunately in this case, the applicant failed." The Court dismissed the review with costs.

Lessons

• When faced with an accommodation request for breastfeeding, the employee will need to provide evidence that breastfeeding is required, such as medical evidence that the child specifically requires breastmilk as opposed to formula or other types of milk.
• The employee will also need to provide evidence of the alternate arrangements she has considered to meet the requirement to breastfeed. Children can be bottle-fed by others from milk the mother has expressed.
• This case illustrates that the most reasonable position tends to prevail. Ms. Flatt took an unreasonable position: that she should be permitted to telework full-time. While in this case the issue of accommodation did not arise because Ms. Flatt could not prove prima facie discrimination, her position that working from the office at all was incompatible with breastfeeding was unreasonable and not supported by the evidence.

Note: This a reprint of an article by Julie Menten of Roper Greyell LLP.