Late last month, a female Canadian Border Services Agency (“CBSA”) screener revealed that five male passengers travelling through Toronto’s Pearson airport were given permission to be screened by only male guards. The reason? The five men are Hindu priests known as Sadhus, whose religious adherence does not permit any contact with women.  The female officer reporting the incident told the CBC anonymously that “the nature of the request is offensive to me as a woman,” and a spokesperson for the union has said he is considering launching a complaint to the Canadian Human Rights Commission.

The story, while unique, is yet another instance of one of the most sacred human rights grounds – religious accommodation.  This particular incident was unusual as an example of a workplace religious accommodation to benefit a client and not an employee. Yet religion is the core component of an individual’s identity. Traditions and values can govern one’s dress, dietary restrictions, scheduling, and engagement with others – all of which can be strong determiners of their conduct in the workplace.

Under federal and provincial human rights codes, religion is a protected ground of discrimination, and one cannot be treated differently in their employment based on their religious beliefs and/or practices. With an increased understanding of diversity, it is fairly straightforward for most employers that some accommodations may be required for an observant employee.  But this was not always the case, and even today employers can still struggle with how to properly accommodate an employee’s potentially sensitive needs.

The Law

The seminal case on religious discrimination, Ontario Human Rights Commission vs. Simpson-Sears (more commonly known as “O’Malley”) is still the leading case on defining workplace discrimination almost three decades later.  Ms. O’Malley’s participation in a Friday and Saturday Sabbath observance (after joining the Seventh-Day Adventist church several years into her employment) came into direct conflict with mandatory scheduled shifts at those times. When Ms. O’Malley was informed she could not be accommodated by her employer to meet her new level of observance as a full-time employee, she instead accepted an offer of part-time employment, at a reduction of her salary and benefits.

The case gave birth to the concept of ‘adverse effects discrimination’ – where an employee rule or policy may not be discriminatory on its face, such as a requirement that full-time employees must work busy weekend shifts to meet demand, but may indirectly discriminate against employees who are strict Sabbath observers.  The Court held that in cases like Ms. O’Malley’s, a case of discrimination could be made out, even if that was not the employer’s intention.

Further notable cases building on this decision have gone on to outline the duty of employers to accommodate employees’ religious practice to the point of undue hardship.  Fourteen years after the O’Malley decision was released, the Supreme Court conducted a test in Meiorin to determine whether a discriminatory workplace rule could be justified as a workplace requirement:

  1. Did the employer adopt the standard for a purpose rationally connected to the performance of the job?
  2. Did the employer adopt the particular standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose?
  3. Is the standard reasonably necessary to the accomplishment of that legitimate work-related purpose? To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.

In other words, for an employer rule or policy to be discriminatory but still acceptable, the discrimination in question must be part of the performance of the role, the employer must believe that it is necessary for the role, and it must be impossible to accommodate without imposing undue hardship on the employer.

What is Undue Hardship?

 There are three factors that would constitute undue hardship according to the Ontario Human Rights Commission: cost, outside sources of funding (if they are available to help alleviate accommodation costs, they must be used), and health and safety requirements.  Since religious accommodations are usually of no cost and rarely implicate health and safety requirements, it is nearly impossible for an employer to justify a case of discrimination based on religious grounds. Furthermore, adverse effects discrimination applies from the beginning of the employment relationship – if an employee is unable to apply for a job based on their religious practices that too will constitute adverse effects discrimination.

In the case of Central Okanagan School District No. 23 v Renaud, the Supreme Court ruled both employers and employees share responsibilities when it comes to accommodations. If the discriminatory policy in question was created by the employer, they must be a driving force in creating suitable accommodations.  If it was not created by them though, at the very least they must cooperate with accommodations that are made and are not allowed to stand in the way.  However, an employee requesting accommodation must also be reasonable in their request. They cannot expect a perfect solution and may need to be satisfied with a reasonable outcome.

What You Need to Know

Canada’s reputation as a multicultural, pluralistic society is no accident and is firmly ingrained in both human rights legislation and at common law.  Protection of religious minorities in Canada is paramount and these protections extend into the workplace.  An employee is free at law to dress, eat, and conduct themselves in a manner dictated by their religious observances, and these freedoms are highly valued at law.

Where these religious practices come into conflict with an employer’s business practices, the employer will most often be required to come up with appropriate accommodations. This could mean allowing an employee to observe their Sabbath or religious holidays without any loss of salary, benefits, or privileges afforded to other employees in the same role. However, not all accommodations need to begin on difficult footing.  An employee requesting religious accommodations can work hand-in-hand with the employer to fashion accommodations that work for all parties.

Our in-house lawyers and HR professionals are adept at dealing with cases of discrimination and accommodation.  If you would like assistance updating your workplace policies or feel as an employee that you may be subject to a case of religious discrimination, we are here to help.  Contact our legal or HR teams today for more information.

Blog post by Shaun Bernstein

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