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Not exactly kosher

Any attempt to interfere with an employment relationship for religious reasons must be done with the utmost caution
employment law
A slaughterer works with beef carcasses at the Biernacki Meat Plant slaughterhouse in Golina, Poland, in 2013. The abattoir in this small town in western Poland has a special dormitory to house the more than 30 Jewish men designated by Israel's chief rabbi to oversee the production of kosher beef there. REUTERS/Kacper Pempel

By Stuart Rudner and Shaun Bernstein

There are exceptions to every rule.

In most circumstances, employers are prohibited from discriminating against employees based on numerous grounds, including disability, sexual orientation, race, and religion, to name a few.

Even these rules have exceptions — for example, religious institutions can favour people of the same religion in certain circumstances, such as Catholic schools giving preference to Catholic teachers.  

That said, there is supposed to be a separation between church and state, and employers are supposed to respect an employee’s personal boundaries when it comes to their religion.

So, what happens when they don’t?

The Kashruth Council of Canada, more commonly known as COR, was recently ordered by an employment standards officer to pay one of its former employees more than $19,000 in overdue overtime pay, public holiday pay, administrative costs, and penalties.

The COR is one of the primary organizations in Canada that oversees kosher food production in order to monitor adherence to Jewish dietary laws. It is relied upon by observant Jews as an overseeing body protecting their religious regulations.

The employee, who had been with COR for six years as a mashgiach (a supervisor of kosher ritual slaughter), was terminated for, of all things, dating a non-Jewish woman. When COR found out about the relationship, it terminated his employment with cause.

COR argued that part of the employee’s duties was to enforce religious laws, and thus the employee must abide by religious principles in order to remain trustworthy in the role. His relationship with someone outside of his faith violated those principles and, therefore, it had just cause to dismiss him.  

The Ministry of Labour rejected these claims, and ordered the organization to pay. In addition to the penalties, of course, the employer would have incurred substantial legal fees in fighting the matter.

COR has vowed to appeal the ruling, which they claim infringes upon its religious mandate. The employee has also filed an application against COR with the Ontario Human Rights Commission. While at first glance that case may sound like a “slam dunk,” it may not be so simple.

Ontario’s Human Rights Code prohibits discrimination in employment based on numerous grounds, including race and creed — but there are exceptions to every rule. Section 24(1)(a) of the code states that the equal treatment guaranteed by section 5 is not actually infringed where:

“a religious, philanthropic, educational, fraternal or social institution or organization that is primarily engaged in serving the interests of persons identified by their race, ancestry, place of origin, colour, ethnic origin, creed, sex, age, marital status or disability employs only, or gives preference in employment to, persons similarly identified if the qualification is a reasonable and bona fide qualification because of the nature of the employment.”

This section, along with other constitutional protections, is one of the grounds frequently raised by the Ontario’s Catholic school board to permit the preferential hiring of Catholic teachers. But would it validate the termination of an individual for refusing to uphold “mandated” religious restrictions in his private life?

The employer has already failed once with this argument, and it is far from clear that it will be successful in defending a human rights claim.

Generally speaking, employment-related decisions should not be made based upon an individual's religion or religious beliefs. Although the human rights legislation allows for some exemptions, those should be used sparingly and cautiously.

I have advised religious institutions of many faiths on employment issues, and while each situation may be unique, the overarching law is fairly straightforward: The Canadian legal framework is established to stringently protect an individual’s rights and freedoms, and any human rights violations by employers may be subject to serious penalties from courts or tribunals.

Any attempt to interfere with an employment relationship for religious reasons must be done with the utmost caution, and would likely only be viable if they make it impossible for an employee to perform her required duties. In any event, employers should always seek legal advice before proceeding any further.

Shaun Bernstein is an associate at Rudner Law in Toronto.

© Copyright Canadian HR Reporter, HAB Press. All rights reserved.

Stuart Rudner

Stuart Rudner, Employment Lawyer and MediatorStuart Rudner is the founder of Rudner Law (RudnerLaw.ca), a firm specializing in Employment Law and Mediation. He can be reached at stuart@rudnerlaw.ca, (416) 864-8500 or (905) 209-6999, and you can follow on Twitter @RudnerLaw.
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