To what degree must an employer accommodate Muslim employees regarding their specific times for prayer (Salaah) and their pre-prayer washing rituals?
Question: To what degree must an employer accommodate Muslim employees regarding their specific times for prayer (Salaah) and their pre-prayer washing rituals?
Answer: Human rights statutes across Canada prohibit employers from discriminating against employees on certain specified grounds, including an employee’s religion.
In British Columbia (Public Service Employee Relations Commission) v. B.C.G.E.U. (often referred to as the Meiorin decision) the Supreme Court of Canada established a new “unified approach” to discrimination claims brought under human rights legislation. Where an employer’s workplace standard, such as a requirement that an employee must work a particular shift, discriminates against an employee on a prohibited ground (such as religion), that standard will violate the statute unless the employer can establish that it is a bona fide occupational requirement. The employer must prove, on the balance of probabilities, that:
•it adopted the standard for a purpose rationally connected to the performance of the job;
•the standard was adopted in an honest and good faith belief that it was necessary for the fulfillment of a legitimate work-related purpose; and
•the standard is reasonably necessary for the accomplishment of that purpose.
In order to establish a job requirement is “reasonably necessary” for the fulfillment of a legitimate work-related purpose, the employer must demonstrate that it is impossible to accommodate a disabled employee who cannot meet the standard without causing the employer undue hardship. This gives rise to the so-called duty to accommodate.
To fulfill its duty an employer must take reasonable measures short of undue hardship to accommodate an employee’s religious beliefs and practices. This would include the prayer times and pre-prayer washing rituals of Muslim employees.
A good example of the application of the duty to accommodate religious beliefs is found in Renaud v. Central Okanagan School District No. 23. The complainant was a unionized custodian whose work schedule under the collective agreement required him to work a Friday evening shift. As a Seventh-day Adventist, however, his religious beliefs prevented him from working on his Sabbath, from sundown Friday to sundown Saturday.
The employer suggested moving the complainant to a Sunday to Thursday shift, but the union refused to agree as such an accommodation would have required an exception to the collective agreement. After further unsuccessful attempts to find a solution the employer terminated the complainant’s employment.
The court found the employer and the union shared a joint responsibility to seek to accommodate the complainant’s religious beliefs and they had both failed to do so.
A trade union may become a party to a human rights violation in two ways. First, it may cause or contribute to the discrimination by participating in the negotiation of the discriminatory collective agreement provision. Second, it may impede the reasonable efforts of the employer to accommodate the employee’s religious beliefs. The complainant employee must do his part as well by assisting in the search for a reasonable accommodation.
In Ontario (Human Rights Commission) v. Ford Motor Co. of Canada the court upheld the employer’s refusal to accommodate two workers who had sought to be excused from working Friday night shifts because of their next-day Sabbath. The court found the following factors amounted to undue hardship for the employer: financial cost, the inflexibility of the operation, the importance of having a regular operator on each job, the impact of the collective agreement, safety considerations and the substantive effect of accommodation on other workers. These factors made accommodation impossible in the circumstances.
•British Columbia (Public Service Employee Relations Commission) v. B.C.G.E.U., 1999 CarswellBC 1908, [1999] S.C.J. No. 46 (S.C.C.)
•Renaud v. Central Okanagan School District No. 23, 1992 CarswellBC 257, 1992 CarswellBC 910, [1992] S.C.J. No. 75 (S.C.C.)
•Ontario (Human Rights Commission) v. Ford Motor Co. of Canada, 2002 CarswellOnt 5498, [2002] O.J. No. 3688 (Ont. Div. Ct.)
Colin G.M. Gibson is a partner with Harris & Company in Vancouver. He can be reached at [email protected] or (604) 891-2212.
Answer: Human rights statutes across Canada prohibit employers from discriminating against employees on certain specified grounds, including an employee’s religion.
In British Columbia (Public Service Employee Relations Commission) v. B.C.G.E.U. (often referred to as the Meiorin decision) the Supreme Court of Canada established a new “unified approach” to discrimination claims brought under human rights legislation. Where an employer’s workplace standard, such as a requirement that an employee must work a particular shift, discriminates against an employee on a prohibited ground (such as religion), that standard will violate the statute unless the employer can establish that it is a bona fide occupational requirement. The employer must prove, on the balance of probabilities, that:
•it adopted the standard for a purpose rationally connected to the performance of the job;
•the standard was adopted in an honest and good faith belief that it was necessary for the fulfillment of a legitimate work-related purpose; and
•the standard is reasonably necessary for the accomplishment of that purpose.
In order to establish a job requirement is “reasonably necessary” for the fulfillment of a legitimate work-related purpose, the employer must demonstrate that it is impossible to accommodate a disabled employee who cannot meet the standard without causing the employer undue hardship. This gives rise to the so-called duty to accommodate.
To fulfill its duty an employer must take reasonable measures short of undue hardship to accommodate an employee’s religious beliefs and practices. This would include the prayer times and pre-prayer washing rituals of Muslim employees.
A good example of the application of the duty to accommodate religious beliefs is found in Renaud v. Central Okanagan School District No. 23. The complainant was a unionized custodian whose work schedule under the collective agreement required him to work a Friday evening shift. As a Seventh-day Adventist, however, his religious beliefs prevented him from working on his Sabbath, from sundown Friday to sundown Saturday.
The employer suggested moving the complainant to a Sunday to Thursday shift, but the union refused to agree as such an accommodation would have required an exception to the collective agreement. After further unsuccessful attempts to find a solution the employer terminated the complainant’s employment.
The court found the employer and the union shared a joint responsibility to seek to accommodate the complainant’s religious beliefs and they had both failed to do so.
A trade union may become a party to a human rights violation in two ways. First, it may cause or contribute to the discrimination by participating in the negotiation of the discriminatory collective agreement provision. Second, it may impede the reasonable efforts of the employer to accommodate the employee’s religious beliefs. The complainant employee must do his part as well by assisting in the search for a reasonable accommodation.
In Ontario (Human Rights Commission) v. Ford Motor Co. of Canada the court upheld the employer’s refusal to accommodate two workers who had sought to be excused from working Friday night shifts because of their next-day Sabbath. The court found the following factors amounted to undue hardship for the employer: financial cost, the inflexibility of the operation, the importance of having a regular operator on each job, the impact of the collective agreement, safety considerations and the substantive effect of accommodation on other workers. These factors made accommodation impossible in the circumstances.
•British Columbia (Public Service Employee Relations Commission) v. B.C.G.E.U., 1999 CarswellBC 1908, [1999] S.C.J. No. 46 (S.C.C.)
•Renaud v. Central Okanagan School District No. 23, 1992 CarswellBC 257, 1992 CarswellBC 910, [1992] S.C.J. No. 75 (S.C.C.)
•Ontario (Human Rights Commission) v. Ford Motor Co. of Canada, 2002 CarswellOnt 5498, [2002] O.J. No. 3688 (Ont. Div. Ct.)
Colin G.M. Gibson is a partner with Harris & Company in Vancouver. He can be reached at [email protected] or (604) 891-2212.
