Malcolm Boyle QC
Malcolm Boyle QC, Lawyer, McInnes Cooper
Leah Kutcher
Leah Kutcher, Lawyer, McInnes Cooper
Caroline Spindler
Caroline Spindler, Lawyer, McInnes Cooper
 

Employers’ legal duty to accommodate employees seems to most frequently come up in the context of employees with disabilities. But that duty extends to any characteristics that human rights legislation protects, including gender identity, gender expression and sexual orientation, sex, family status … and religion. As the ethnic diversity of Canada’s population grows, so too does the religious diversity of its workforce – and the calendar of religious holidays has expanded correspondingly. Employers risk violating human rights legislation when they make generalized assumptions about what days of the week or of the year religious beliefs restrict employees from working, or impose unrealistic alternatives or conditions on employees.

HAPPY HIMMELFAHRT

That’s just what was at stake in a 2015 decision of the Ontario Human Rights Commission when one employer (ES Holdings Inc., operating as Country Herbs) failed to accommodate Himmelfahrt. The employer grows and imports vegetables and herbs in a rural locale. Two full-time employees, a brother and sister, both minors, packed the products; the employer agreed with their parents that they wouldn’t work past 10:00 p.m., given their age. The employer’s written policy stated there was no time off on Thursdays; this was due to the required delivery schedule and the perishable nature of the product. The siblings are German Mennonites who celebrate a religious holiday called Himmelfahrt; in this year, the holiday fell on a Thursday. One sibling was scheduled to work on Himmelfahrt; the other wasn’t. Together, they informed their employer in advance of Himmelfahrt that the scheduled sibling wouldn’t be able to work either on Himmelfahrt. The employer gave her the option of attending work on Himmelfahrt or at a special midnight shift added only when there was a German Mennonite holiday, to make up the hours missed or be fired. The scheduled sibling didn’t attend work on either and the employer fired both siblings. The siblings filed a complaint with the Ontario Human Rights Commission alleging discrimination in employment based on creed and association. The employer argued the siblings knew the policy and its consequences. Furthermore, Himmelfahrt fell on a Thursday, a particularly busy day. Eleven other employees had also asked for it off; it wouldn’t be possible to accommodate everyone and scheduling make-up shifts after Himmelfahrt would be unsustainable given the perishable products and time-sensitive nature of the work. But the human rights adjudicator agreed with the employees:

  • The attendance policy discriminated on the basis of creed, and the midnight option wasn’t reasonable The employer adopted the policy for a purpose rationally connected to the job performance and in an honest and good faith belief it was necessary to fulfill the work-related purpose – but didn’t prove the policy’s standard was reasonably necessary to accomplish that work-related purpose nor that the employer took reasonable steps to accommodate the scheduled sibling. There was no evidence the employer had any discussion with the employee or obtained information about her situation, that it considered how she could be accommodated or even that it gave serious thought to alternatives to accommodate her even though she informed the employer far in advance.
  • The alternative it proposed to the employee (working at midnight) was unreasonable in the circumstances (the employee’s age, the employer’s setting and the prior agreement with the employee’s parent limiting the hours of work), so imposing the attendance policy on her wasn’t justified.
  • Regardless, the employer didn’t adduce any evidence of undue hardship.

The adjudicator also decided the employer fired the unscheduled sibling because of his association with his sister on the basis of creed contrary to the Human Rights Code (and likely also a wrongful dismissal regardless). The adjudicator awarded the siblings a total of $17,500 compensation for injury to their dignity and feelings, $8,617 for lost wages (plus interest), and ordered the employer to create an internal human rights policy, take human rights training and place Human Rights Code cards throughout the workplace.

5 EMPLOYER FAQS ABOUT RELIGIOUS ACCOMMODATION

Here are the answers to five of employers’ most frequently asked questions about accommodating employees on the basis of religion.

  1. What “religions” is an employer required to accommodate?

In the seminal case on freedom of religion, Syndicat Northcrest v. Amselem, the Supreme Court of Canada said that, “[d]efined broadly, religion typically involves a particular and comprehensive system of faith and worship. Religion also tends to involve the belief in a divine, superhuman or controlling power. In essence, religion is about freely and deeply held personal convictions or beliefs connected to an individual’s spiritual faith and integrally linked to one’s self-definition and spiritual fulfilment, the practices of which allow individuals to foster a connection with the divine or with the subject or object of that spiritual faith.”

Human rights legislation protection of religion in Canada covers more than merely mainstream or well-known religions, and extends to creed and religious creed. As long as a person’s has a religious belief that’s “sincerely held”, regardless of how widespread that belief is, the employee is entitled to be accommodated. If an employee approaches their employer about religious accommodation, it’s important that that employer keep an open mind, avoid making off-the-cuff judgments of the legitimacy of any such belief or religion, hear the employee out, take steps to fulfill its duty to accommodate and document everything fully.

  1. Why should an employer accommodate one employee if other employees of the same religion don’t ask for accommodation?

Because it has a legal obligation to do so. Religion is personal. People’s beliefs and practices often exist on a spectrum: some devout believers seek no accommodation, while others, whose belief may not appear as deep, believe sincerely in observing rites and rituals. And an accommodation that works for some employees might not work for others. For example, in the Himmelfahrt case example, 11 employees had asked to take the holiday off; about half took the option to work the newly added midnight shift and took the day off, and half worked the holiday. The siblings were the only employees that didn’t work either option – but the employer still violated their right to be free from discrimination based on religion.

  1. What sorts of things does an employer have to do to accommodate an employee’s religion?

Accommodating religion means taking steps to avoid unnecessary interference with the employee’s observance of their religion. Depending on the nature of the workplace and the requirements of the religious belief, this could entail the employer:

  • Giving an employee time off or adjusting its scheduling to allow an employee to observe their Sabbath, certain holy days or even daily rites, such as prayer. In Canada, the Christian population is generally accommodated through statutory holidays. However, members of other religions may request time away from work for their high holy days. Usually, accommodation takes place by allowing them to use vacation time, banked time or the like. There is very little precedent for requiring an employer to offer paid time off.
  • Eliminating or adjusting practices or policies, both those that are discriminatory on their face and those that appear neutral, but have a discriminatory impact. One example is workplace dress codes, which can often seem reasonable but once in practice, can adversely impact an employee based on their religion.
  • Not imposing one group’s religion on non-adherents. This may be challenging in workplaces dominated by one religious group, but the employer is still legally obliged to accommodate. So, for example, because your company’s Christmas Hannukah  Kwanza party probably isn’t focussed on the religious aspects of a holiday and is instead intended to allow employees to get together socially, calling it a holiday party is more inclusive – and advisable.
  1. How much accommodation is enough?

An employer is required to offer reasonable accommodation to the point of “undue hardship”.   At times, this might seem impossible or unfair to the employer. But before jumping to this conclusion, the employer must consider the potential accommodations and the evaluate each relative to the factors that bear on undue hardship (and should document is considerations). These can include financial cost, disruption of a collective agreement, problems of morale, feasibility and reallocation of work or scheduling changes. Often, the size of the employer’s workforce is key. Accommodation is typically easier where the workforce is large and religiously diverse than where it’s relatively small and the proportion of those seeking accommodation is relatively large.  But an employer’s obligation to accommodate employees’ religion is to the point of undue hardship. The bottom line: some hardship must be expected and an employer must accept this as part of “the cost of doing business” in a diverse and rights-based society like Canada.

  1. Why does the employer have to do all the work?

It doesn’t. Employees seeking accommodation of religion (or any other type of accommodation) have a legal obligation to cooperate. This means they must participate in the accommodation efforts in a meaningful way, assist in finding an accommodation that works and accept a reasonable – as opposed to a perfect – accommodation. This might look different in each case depending on the nature of the workplace, the needs involved and the accommodation options. For example, if scheduling is an issue, the employee seeking accommodation might need to accept other scheduling changes that result from the accommodation, if they aren’t avoidable and don’t amount to discrimination themselves.

To discuss this or any other legal issue, contact any member of McInnes Cooper’s Labour & Employment Law Team. Read more McInnes Cooper Legal Publications and subscribe to receive those relevant to your business.

McInnes Cooper prepared this article for information; it is not legal advice.  Consult McInnes Cooper before acting on it. McInnes Cooper excludes all liability for anything contained in or any use of this article. © McInnes Cooper, 2016.  All rights reserved.

 

About the authors:

Malcolm Boyle QC is a seasoned labour and employment lawyer. He represents employers in all sectors and industries. He provides strategic advice on all matters dealing with employees, from employment termination and OH&S accidents to pension plan matters, has a successful record representing management during union organizing campaigns and appears regularly as employer counsel before provincial and national labour boards, employment standards tribunals, human rights tribunals, workers’ compensation hearing boards and many private arbitration or mediation boards. You can reach Malcolm at Malcolm.boyle@mcinnescooper.com.

Leah Kutcher is a member of McInnes Cooper’s Labour and Employment Team. She graduated from McGill Law School with two law degrees, an LL.B. and a BCL, where she received an award for highest standing in business law, then worked for former Supreme Court Justice, the Honourable Claire L’Heureux-Dube, before joining McInnes Cooper. You can reach Leah at leah.kutcher@mcinnescooper.com.

A member of McInnes Cooper’s Labour and Employment Team, Caroline Spindler’s practice focuses on labour and employment law and general litigation. While completing her Juris Doctor, Caroline received academic excellence awards in Trial Practice and Labour and Employment law. She recently spent a semester abroad studying Public International Law and European Union Law at Örebro University in Örebro Sweden. You can reach Caroline at caroline.spindler@mcinnescooper.com.