The Canadian Federal Court of Appeal upheld the decision that the employee’s decision to breastfeed her child was a “personal choice”, holding specifically at paragraph 35 of its reasons for decision that, “Breastfeeding during working hours is not a legal obligation towards the child under her care. It is a personal choice.”

1. Labour PainsLabour Pains
An employment law blog for employers and employees.
Published by Sean Bawden of Kelly Santini LLP.
T. 613.238.6321 | sbawden@kellysantini.com | www.kellysantini.com
Decision to Breastfeed a “Personal Choice”, which Need Not be
Accommodated: Federal Court of Appeal
Earlier this year I wrote about a
decision of the Public Service
Labour Relations and
Employment Board
(“PSLREB”), in which Member
Augustus Richardson held that
an employee’s work
requirements that impacted on
that employee’s breastfeeding
schedule did not constitute
discrimination on the basis of
either sex or family status. See:
Employers Need Not
Accommodate Employees
“Choice” to Breastfeed -
PSLREB.
Now the Federal Court of
Appeal has judicially reviewed
that decision and a panel of
three judges (two women and
one man) upheld it.
In its decision rendered
November 10, 2015, (Flatt v.
Canada (Attorney General),
2015 FCA 250 (CanLII), the
Federal Court of Appeal upheld
the decision that the employee’s
decision to breastfeed her child
was a “personal choice”,
holding specifically at
paragraph 35 of its reasons for
decision that, “Breastfeeding
during working hours is not a
legal obligation towards the
child under her care. It is a
personal choice.”
Some people are going to
disagree.
FACTS
The facts of the case are as set
out in my earlier post and in the
court’s reasons for decision. In
short, the Applicant, Ms. Flatt,
grieved that her employer
discriminated against her on the
grounds of sex and family status
when it refused her request to
telework from home full time,
Monday to Friday, for a year
following the end of her year-
long maternity leave in March
2013. She made the request
because, as she put it in her
grievance, she needed “… to
change the way [she worked]
because of breastfeeding.”
DECISION
In finding that the applicant had
not been discriminated against
on the basis of sex or family
status the Honourable Justice
Johanne Trudel directed her
attention to the four factors
necessary to establish a prima
facie case of discrimination on
the basis of family status. Those

2. Labour PainsLabour Pains
An employment law blog for employers and employees.
Published by Sean Bawden of Kelly Santini LLP.
T. 613.238.6321 | sbawden@kellysantini.com | www.kellysantini.com
factors, as enumerated by the
Federal Court of Appeal in the
case of Canada (Attorney
General) v. Johnstone, 2014
FCA 110 (CanLII), [2015] 2
F.C.R. 595 are as follows: (i)
that a child is under his or her
care and supervision; (ii) that
the childcare obligation at issue
engages the individual’s legal
responsibility for that child, as
opposed to a personal choice;
(iii) 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 (iv) that the
impugned workplace rule
interferes in a manner that is
more than trivial or
insubstantial with the
fulfillment of the childcare
obligation.
In finding that the Applicant
had failed to satisfy the second
criterion what Justice Trudel
wrote was the following:
[32] Here, this comparison is inapt.
I accept 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. As a result, I also
accept the applicant’s position that
breastfeeding can fall under both
prohibited grounds of
discrimination. Here, and without
adopting all of its reasoning, I can
find no error in the Board’s ultimate
conclusion that Ms. Flatt was
breastfeeding her child out of a
personal choice and that
discrimination on that basis, if it
was discrimination, was
discrimination on the basis of
family status. I do not share the
applicant’s view that the Board
misapprehended Johnstone and
misapplied the Johnstone factors. I
need not further discuss the
Board’s analysis of case law
dealing with the question of
whether work requirements that
impact an employee’s
breastfeeding schedule constitute
discrimination on the basis of sex
or family status.
[33] It seems to me 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, foreseeably
divulging confidential information.
For example, such information
may address 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.
This list of examples, of course, is
not exhaustive. The purpose of
such evidence would be to
establish that returning to work at
the workplace is incompatible with
breastfeeding.
[34] Here, such information about
the young infant is absent from the
record but for a medical note from
Doctor Josephine Smith, stating
that she supports the applicant’s
choice to continue breastfeeding
her child for a second year. A
second note states that due to the
applicant’s inability to pump her
milk, breastfeeding should occur
twice over a 8-hour period to
ensure that the milk supply is
maintained. The applicant also
wrote in one of her emails that she
wanted to breastfeed the child past
her one-year maternity leave
because her second child had had
health issues and she felt that her
young son’s immune system would
benefit from breastfeeding.
[35] Having carefully examined the
record, I conclude that the
applicant’s evidence does not
meet the second factor of
Johnstone. In her particular
circumstances, breastfeeding
during working hours is not a legal
obligation towards the child under
her care. It is a personal choice.
Before concluding, Justice
Trudel felt implored to make
one final comment, which was
the following:
[38] I do not wish these reasons to
be understood as trivializing
breastfeeding. The medical
profession and numerous health
organizations encourage mothers
to breastfeed babies, praising,
inter alia, the benefits of human
milk on the immune system of
young children. The applicant
chose to breastfeed her children
and respect must be had for her
decision. This case is not about
that choice but rather about the
difficulties of balancing
motherhood and career. It is about
balancing the rights of mothers
and that of employers having
regard to the basic principle that
one must be at work to get paid.
The test for establishing prima
facie discrimination is well
entrenched in Canadian

3. Labour PainsLabour Pains
An employment law blog for employers and employees.
Published by Sean Bawden of Kelly Santini LLP.
T. 613.238.6321 | sbawden@kellysantini.com | www.kellysantini.com
jurisprudence. In the case of
breastfeeding, the onus is on
working-outside-the-home mothers
to make a prima facie case of
discrimination. Unfortunately in this
case, the applicant failed.
In the result the application for
judicial review was dismissed,
with costs of $4,600 inclusive
of disbursements and taxes
awarded against Ms. Flatt.
COMMENTARY
What happened? In short, the
court, while lauding Ms. Flatt’s
decision to breastfeed her child
saw the decision as a personal
choice and nothing higher. As a
result, given the articulation of
the test for discrimination,
where “choices” don’t ‘cut it’
the court was unable to find
discrimination.
TAKEAWAYS FOR
EMPLOYEES WITH
LABOUR PAINS
What does this mean for other
nursing mothers? It is important
to note what Justice Trudel said
in paragraph 38 of her reasons
for decision: Flatt does not
close the door on the possibility
that failing to accommodate
breastfeeding can constitute
discrimination; rather in order
to succeed in such an argument
the applicant is going to need to
demonstrate why breastfeeding
is necessary for that individual
and therefore more than simply
a “choice.” In that respect,
individual medical evidence
will likely be necessary – unless
the needle moves significantly
within the epidemiological
literature.
As a result, the takeaway for
employees with labour pains is
that if you find yourself in a
situation where you are seeking,
as one of my friends put it legal
“support and encouragement”
for your decision to feed your
child by way of breastfeeding
and your employer is giving
you a hard time, it may be
prudent to speak with an
experienced employment
lawyer.
The professional, experienced
and cost-effective employment
lawyers for employees at
Ottawa's Kelly Santini LLP
would be happy to be of service
to you.
TAKEAWAYS FOR
EMPLOYERS WITH
LABOUR PAINS
Again, it is important to note
that the employer in this case
was Treasury Board, i.e. the
federal government. Few
employers in Canada are as
large or diverse as the federal
public service.
Accommodation of human
rights issues is always
contextual, and as the Flatt
decision demonstrates, not all
requests for accommodation
must be satisfied. However, in
saying that it is very important
for employers to note that the
law does require employers to
at least consider the ways by
which an employee’s request
can be accommodated. On this
point employers would be
prudent to consider what the
Supreme Court of Canada said
in the case of Moore v. British
Columbia (Education), 2012
SCC 61, a summary of which
can be found in the post School
District Learns Lesson in
Accommodation.
If you are an employer in
Ontario and are looking for
experienced, pragmatic, and
honest legal advice with respect
to your workplace issues, the
professional, experienced and
cost-effective employment
lawyers for employers at
Ottawa's Kelly Santini LLP
would be happy to be of service
to your business or
organization.

4. Labour PainsLabour Pains
An employment law blog for employers and employees.
Published by Sean Bawden of Kelly Santini LLP.
T. 613.238.6321 | sbawden@kellysantini.com | www.kellysantini.com
CONTACT ME
To reach the author of this blog,
Sean Bawden, email
sbawden@kellysantini.com or
call 613.238.6321 x260.
Sean P. Bawden is an Ottawa,
Ontario employment lawyer and
wrongful dismissal lawyer
practicing with Kelly Santini
LLP. He has also been a part-
time professor at Algonquin
College teaching Trial
Advocacy for Paralegals and
Small Claims Court Practice.
As always, everyone’s situation
is different. The above is not
intended to be legal advice for
any particular situation. It is
always prudent to seek
professional legal advice before
making any decisions with
respect to your own case.