Accommodating Religion in the Workplace. What do Employers need to Know?

 Winter 2017

In 2006, it was estimated that 2.5 million Canadians were adherents of a religion other than Christianity.  By 2031, this number is expected to increase to between 5.3 million and 6.8 million people.  The increasing diversity of the Canadian population will have an impact on the workplace.  Employers cannot discriminate against employees on the basis of their religion and have a legal duty to accommodate employees’ religious beliefs.  Failure to do so may violate human rights legislation.

This newsletter provides information on the scope of the Employer’s obligations to accommodate religion in the workplace and sets out guidelines on how to meet these obligations.

The legal framework

Human rights legislation prohibits an employer from discriminating against employees on the basis of certain protected characteristics.  Provincially regulated employers are governed by the Nova Scotia Human Rights Act, SNS 1989, c 214 (the “Act”), while federally regulated employers are governed by the Canadian Human Rights Act, SC 1985, c H-6.  Both of these pieces of legislation prohibit discrimination in the workplace on the basis of an employee’s religion.

If the workplace is unionized, the collective agreement may also be relevant.  Many collective agreements contain a non-discrimination clause so issues with respect to discrimination and/or accommodation are often addressed through the grievance and arbitration process.

Defining religion

The starting point is to define what constitutes a religion.  The Supreme Court of Canada addressed this issue in Syndicat Northcrest v Amselem, 2004 SCC 47 (“Amselem“).  That case involved a claim under the Quebec Charter of Rights and Freedoms which also guarantees freedom of religion.  The definition of religion developed in Amselem may apply in a workplace, or elsewhere.  The Supreme Court of Canada wrote:

39. In order to define religious freedom, we must first ask ourselves what we mean by “religion”. While it is perhaps not possible to define religion precisely, some outer definition is useful since only beliefs, convictions and practices rooted in religion, as opposed to those that are secular, socially based or conscientiously held, are protected by the guarantee of freedom of religion. Defined 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.

The Supreme Court of Canada was clear that the protection applies not only to mainstream religions, but also to lesser known religions.  As long as the employee has a “sincerely held” belief in a concept that fits within the definition of religion set out above, the employee can claim protection against discrimination.

Failing to accommodate for religious practices

A recent case from Ontario demonstrates the consequences for an employer if it fails to accommodate the religious practices of its employees to the point of undue hardship.  In HT v ES Holdings Inc. o/a Country Herbs, 2015 HRTO 1067 (“Country Herbs”), a Human Rights Tribunal in Ontario found that an employer, Country Herbs, discriminated against two of its employees when it terminated their employment because of a refusal to work on a religious holiday.  The case was actually based on “creed” but the analysis applies equally to religion.

Country Herbs imported, packaged and sold herbs and vegetables.  It had a policy requiring most employees to work every Monday and every Thursday.  The product (herbs and vegetables) was perishable so Country Herbs needed all employees to work on Monday and Thursday – on Monday to get items out the door to restock stores that had sold product over the week-end and on Thursday to stock stores for the upcoming weekend.

The two employees, who were siblings, were minors and Christian Mennonites. Their faith celebrates a religious holiday called Himmilfaurt.  In this particular year, Himmilfaurt fell on a Thursday.  Three weeks before the holiday, the two employees told Country Herbs that they could not work on Himmilfaurt.  Country Herbs scheduled one of them to work on the holiday.

Two weeks later, the employees again told their employer that they could not work on the upcoming Thursday because it was a religious holiday for them.  Country Herbs offered an alternative shift for the one sibling it had scheduled to work, but it was not feasible because it would start at midnight and the location was in a rural area (bear in mind that the employees were minors).

The employee who was scheduled to work did not show up on the holiday.   Country Herbs fired both of the siblings.

The employees filed a human rights complaint alleging discrimination based on creed and association. The association charge was necessary as the employees submitted that the second employee (who was not scheduled to work on the holiday) was fired because he was related to the employee who had been scheduled to work the holiday but did not show up.

Country Herbs claimed that it terminated the employees because they did not comply with the workplace rule of being available to work on a Thursday.  The employer further explained that they had numerous employees who were unable to work on that particular Thursday due to the religious holiday, and accordingly had to enforce their policy prohibiting any time off on Thursdays.

With respect to the employee scheduled to work on the holiday, the Tribunal found that given the employee’s particular circumstances, specifically that she was a minor and had concerns about working late at night in a rural setting, the employer’s offer was not a reasonable attempt to accommodate the employee.

Accordingly, the Tribunal found that Country had discriminated against this employee on the basis of creed.

The Tribunal also found that the second employee, who had not been scheduled to work on the holiday but was fired anyway, was discriminated against because of his association with the first employee.

In terms of a remedy, the Tribunal awarded lost wages and prejudgment interest to the first employee and $10,000 for injury to dignity, feelings and self-respect, and reprisal.  It also ordered Country Herbs to pay lost wages and prejudgment interest, plus $7,500 for injury to dignity, feelings and self-respect, to the second employee.

The Tribunal also ordered the Employer to take human rights training courses.

Guidelines on accommodation and undue hardship

Pursuant to human rights legislation, if an employee’s religious beliefs or practices place limitations on their ability to do their job, employers are required to accommodate the employee to the point of undue hardship. Failure to fulfil this duty can constitute discrimination.

Accommodation is generally defined as any modification of the physical workplace, workplace procedures, or workplace standards that removes barriers for an employee with particular characteristics.  Employers are required to accommodate to the “point of undue hardship”.  While there is no precise definition of “undue hardship”, it is a high standard. The level of accommodation that is required will vary depending on the circumstances.  The following factors are usually considered when determining undue hardship:

• The size of the organization.  The larger the organization, the greater duty the employer will have to accommodate the employee;
• The cost of accommodation.  Often, accommodation procedures are not costly and therefore employers are generally obligated to incur some expense when providing accommodation.  However, if the associated cost becomes substantial, especially in the context of smaller organizations, this cost may constitute undue hardship for the employer;
• Health and safety concerns.  If the accommodation places increased risks on other employees or violates health and safety regulations, a claim of undue hardship may be successful; and
• Impact on employee morale.  If accommodation creates increased workload or overtime requirements for other employees, employee morale may suffer.  If other employees begin to experience higher levels of stress or other health issues due to the accommodation efforts for one employee, this may constitute undue hardship.

Employee obligations

While the employer has the primary responsibility to offer and provide suitable accommodation, affected employees share some responsibility in the accommodation process.  Employees seeking accommodation must cooperate with the process and must be reasonable in their requests for accommodation.  This requires an employee to share information with the employer with respect to the nature of their religious practices and the limitations that these practices have on the individual.  Failure to respond to reasonable requests for information may satisfy the employer’s duty to accommodate.

In addition, the employee must accept reasonable accommodation proposals.  The proposed accommodation does not need to be a perfect solution.  If the employee rejects a reasonable proposal, the employer will almost certainly have met its duty to accommodate.

Recommendations for accommodation

Not all employees require accommodation for their religious practices.  The type of accommodation will vary depending on the circumstances.  However, accommodation methods for employees requiring accommodation due to their religion could include:

• Considering and, if feasible, implementing a flexible work schedule.  This may include:
  • Modifying the start or end of working hours during different religious holidays;
  • Providing time off for religious holidays or time away from work to attend different religious practices, including prayers; and/or
  • Changing schedules to accommodate Sabbaths and holy days.
• Providing breaks and prayer rooms. This may simply be a quiet place to pray;
• Making changes to dress codes or uniforms to accommodate cultural dress; and/or
• Considering dietary restrictions by allowing menu options when food is served in the workplace.

Employers should also recognize that freedom of religion includes freedom from religion.  Some individuals will have little or no religious affiliation, and employers should be careful to not impose religious themed events or practices on employees.  Employers should also be sensitive regarding employees with multi-faith families, where a spouse, while not a member of their partner’s faith, may wish to celebrate a religious holiday with their family.

These are just a few examples of reasonable accommodation.  It is important for the Employer to understand that accommodation should be based on the individual needs of the employee and the resources available to the Employer.

In general, Employers should be proactive in working to address the religious practices of their employees. In addition, it may be prudent to educate employees and managers on different religions and their practices.  Cultural sensitivity is increasingly a crucial management skill.

The most effective accommodation is often the result of cooperation and clear communication between the employee and employer.  It is therefore best for both parties to talk openly and regularly about any needed accommodation.

Conclusion

Given the individualized nature of religion, accommodation will depend on the circumstances and must be determined on a case-by-case basis. Failure to accommodate employees with sincerely held religious beliefs that require time off, or other workplace modifications, can amount to discrimination, the consequences of which can be severe and costly for the employer.

This newsletter is produced by Wickwire Holm to keep our clients and friends informed of developments in the law and immerging issues. It is intended for general information purposes only. In preparing and circulating this newsletter, Wickwire Holm is not providing legal or other professional advice. Readers are urged to consult their professional advisers before taking any action on the bases of information contained in this newsletter. If you have any questions about any issues raised within this newsletter or a related issue, please contact us at wh@wickwireholm.com or 902.429.4111.

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