How does an employer determine if an employee requesting accommodation for a belief system or creed is legitimate, particularly if the employer hasn’t heard of such beliefs before? Do any such requests deserve accommodation?
The scope for an employer to demand proof of an employee’s need for accommodation based on religion or creed is very narrow. Current case law suggests that where an employee seeks accommodation for a sincerely held belief, the employer must limit its inquiry to how and if it can accommodate the employee’s request without undue hardship.
It has no right to establish the legitimacy of the employee’s belief based on recognized doctrinal principles or to reject a request for accommodation without some reasonable basis to believe that the employee’s belief is not sincere.
If the employer fails to consider a request for accommodation because it doubts the sincerity of the employee’s belief, it may be called upon to justify that position before an arbitrator or human rights tribunal. If it fails to consider a request for accommodation simply because it does not recognize novel beliefs as legitimate or deserving of accommodation, it will likely have no justification.
The 2004 decision of the Supreme Court of Canada in Syndicat Northcrest c. Amselem set the standard for assessing discrimination claims based on religion and creed. In that case, a majority of the court held that a claimant need only establish a sincere belief or practice having a nexus with religion when alleging infringement of her charter right to freedom of religion.
There is no obligation to prove the belief is an objective requirement of a recognized religion or creed. The majority reasoned that practices can and do differ for each individual. It is sincerely held beliefs that are deserving of protection, whether or not they reflect the practices of other members of the same religion or creed.
The subjectivity of this test clearly creates difficulties for employers. It does not support an inquiry into the mandatory nature of a religious practice or its consistency with any identifiable faith or religion. If an employee sincerely believes the practice for which she seeks accommodation is an essential component of her personal observance of faith, the practice is protected and a claim for accommodation is justified under human rights legislation.
The difficulties faced by employers in such cases were outlined in 407 ETR Concession Co. v. CAW-Canada, Local 414. In that case, the employees were members of Pentecostal churches. They refused to submit to biometric scanning for identification purposes based on their religious beliefs. They were terminated when no accommodation could be reached. Their churches regarded the issue as a matter of individual conscience and did not purport to regulate their adherents’ submission to scanning in any way.
In the course of his decision allowing the grievance, the arbitrator criticized the majority decision in Amselem for its over-emphasis on the purely individual nature of religious belief. It allowed for an almost unlimited range of individual extrapolation on core religious beliefs and required employers to assume the substantial burden of accommodating employees without any corresponding right to claim objective proof of the characteristics giving rise to the right. He pointed out that religion and creed as grounds of discrimination were unique in this respect.
Had the reasons of the minority prevailed in Amselem, the employees would not have succeeded as they could not show a reasonable belief that the practice was dependent on an established precept and was mandatory. The arbitrator regarded this result as more appropriate to a labour relations context.
The decision in Loblaws Supermarkets Ltd. and UFCW, Local 1000A (Ferrentone), Re, is an example of a successful defence to a discrimination claim based on its lack of sincerity. In this case, the employer rejected the employee’s request for Sundays off when he failed to demonstrate he was either prohibited from working by his Roman Catholic religion or he required the day off to engage in church or charitable activities.
Evidence presented at the hearing showed the employee’s attendance at Sunday mass was sporadic and he spent Sundays engaged in a number of secular activities. The arbitrator agreed with the employer that the employee’s conduct was inconsistent with a sincerely held belief that his faith required him to have Sundays off for religious purposes and concluded that the employee’s request was based on a lifestyle choice rather than a sincerely held religious belief.
As the law currently stands, an employer’s response to unfamiliar manifestations of religion or creed may be limited to questioning the sincerity of those beliefs if the facts allow. There are obvious risks in assuming a request for accommodation is spurious simply because a faith- or creed-based claim appears novel, unprecedented or unreasonable.
Unless there is reason to doubt the employee’s sincerity or good faith, an employer would be well-advised to treat the request as valid and seek the information it needs to assess whether the employee’s beliefs can be accommodated, keeping in mind that the search for an accommodation requires all affected parties to act reasonably.
For more information see:
•Syndicat Northcrest c. Amselem, 2004 CarswellQue 1543 (S.C.C.).
•407 ETR Concession Co. v. CAW-Canada, Local 414, 2007 CarswellOnt 422 (Ont. Arb.).
•Loblaws Supermarkets Ltd. and UFCW, Local 1000A (ferrentone), Re, 2012 CarswellOnt 10887 (Ont. Arb.).
Tim Mitchell practises management-side labour and employment law at Norton Rose Fulbright’s Calgary office. He can be reached at (403) 267-8225 or firstname.lastname@example.org.
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