The duty to accommodate: Hype and reality

Religious accommodation a hot issue but like disabilities, undue hardship is the limit

Recent events have provided numerous questions, concerns and anecdotes concerning the duty to accommodate religious differences in Quebec. With Jewish men taking offense to exercising women in the windows of a YMCA, controversy over Muslim women’s right to vote without showing their faces and the code of conduct enacted by the small town of Hérouxville, Que., outlining “proper” Western behaviour, media hype has created turmoil and led to a misunderstanding of the concept of “reasonable accommodation.”

Although it is clear, that in the vast majority of cases, employers deal with the concepts of the duty to accommodate and undue hardship in the context of illnesses, disabilities and handicaps, these recent events mainly concern religious practices. Most of the incidents do not concern employer-employee situations but some of the principles established by the courts in other areas can be applied to the context of the employment relationship.

The question of the employer’s duty to accommodate religious practices in the workplace is definitely not new in Canada. In Grant v. Canada (Attorney General), a Sikh RCMP officer was allowed to continue to wear his turban instead of the traditional Mountie hat. The court saw no compelling reason to deny the freedom of religion to this employee. On the other hand, in Bhinder v. Canadian National Railway, a Sikh employee of CN Rail working as a maintenance electrician in a coach yard was ordered to wear a safety helmet instead of a turban for safety reasons.

Although the courts have consistently upheld the principle of freedom of religion and its practice, the issue of safety is one of the few issues that could justify a restriction of this freedom. On the issue of safety, the Supreme Court of Canada in Multani v. Marguerite-Bourgeoys, a case concerning the right of a high school student to wear a kirpan, a Sikh ceremonial dagger, in class, specified the objective that must be pursued is to achieve “reasonable safety” and not “absolute safety.” A potential risk will not be considered sufficient to justify an infringement of freedom of religion. An employer would have to evaluate the risk to safety and be able to provide evidence justifying the restriction. Of course, the onus on the employer would be the same if an employer were to take action against an employee whose illness, disability or handicap would allegedly pose a threat to safety.

A common demand to employers concerns the modification of work schedules to take into account the weekly celebration of the Sabbath in various religions. This question was raised in 1985 in Ontario Human Rights Commission v. Simpsons-Sears Ltd., where the Supreme Court of Canada found the employer had a duty to accommodate an employee’s religious practice with a modification of the work schedule. This decision has been applied on many occasions.

In Central Alberta Dairy Pool v. Alberta Human Rights Commission, a union’s refusal to participate in the accommodation process was sanctioned by the Supreme Court of Canada.

In Québec (Commission des droits de la personne) c. Autobus Legault Inc., the Quebec Court of Appeal considered an employee’s ultimatum to the employer requiring a permanent schedule modification by a 48-hour deadline wholly inappropriate and in violation of the employee’s duty to co-operate in trying to find a solution to the problem. The employee’s resignation at the end of the 48-hour ultimatum was ruled a resignation and not a constructive dismissal.

The modification of work schedules is also a consideration for some annual religious celebrations. In this regard, employers have the duty to accommodate those demands unless it would cause undue hardship, taking into account the financial burden on the employer and, to a certain extent, the effect on the morale of other employees. In practice, the absence of some employees on those special celebrations will rarely cause an undue hardship. Whether absences for religious celebrations should be paid or unpaid is a more contemporary question.

In the leading case of Chambly (Commission scolaire régionale) c. Bergevin, religious holidays had to be paid in order to comply with the collective agreement in place. However, it was also decided in Richmond v. Canada (Attorney General) that employers could allow religious holidays to be taken, unpaid, as long as they offered options for the employees to compensate for lost wages through annual leave or the choice of working extra hours. The Federal Court of Appeal’s decision, however, had a strong dissent by Justice Robertson and the matter of paid or unpaid leave is not settled.

Regarding the accommodation of prayers during the day, various human rights commissions in Canada encourage the employer to accommodate the employees by providing, if possible, a modified break policy, flexible hours and a private area for devotions.

In the highly publicized École de technologie supérieure case, the Quebec human rights commission, faced with a demand from Muslims for a room for prayers, ruled: the school’s statement of secularity did not prevent it from its obligations to accommodate the students’ right to freedom of religion; the school’s numerous rooms available at any given time of the day were sufficient to accommodate the students; and the school did not have to devote a room to one single religious faith.

The recent debate in Quebec on the duty to accommodate religious practices led the provincial government to establish a consultation committee on accommodations concerning cultural differences, co-chaired by philosopher Charles Taylor and historian Gérard Bouchard. Hopefully, the committee’s analysis of the situation and recommendations will help create a healthy dialogue to increase mutual understanding and eliminate dramatization of speculative scenarios.

For more information see:

Grant v. Canada (Attorney General), 1995 CarswellNat 1666 (Fed. C.A.).

Bhinder v. Canadian National Railway, 1985 CarswellNat 670 (S.C.C.).

Multani v. Marguerite-Bourgeoys, 2006 CarswellQue 1368, 2006 CarswellQue 1369 (S.C.C.).

Ontario Human Rights Commission v. Simpsons-Sears Ltd., 1985 CarswellOnt 887, 1985 CarswellOnt 946 (S.C.C.).

Central Alberta Dairy Pool v. Alberta Human Rights Commission, 1990 CarswellAlta 149 (S.C.C.).

Québec (Commission des droits de la personne) c. Autobus Legault Inc., 1998 CarswellQue 1095 (Que. C.A.).

Chambly (Commission scolaire régionale) c. Bergevin, 1994 CarswellQue 78, 1994 CarswellQue 114 (S.C.C.).

Richmond v. Canada (Attorney General), 1997 CarswellNat 564, 1997 CarswellNat 2037 (Fed. C.A.).

École de technologie supérieure, Resolution COM-510-5.2.1. (Que. Human Rights Comm.).

Thierry Carrière is an Employment and Labour Associate at Gowling Lafleur Henderson LLP in Montreal. He can be reached at (514) 392-9526 or [email protected]

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