UPS delivers on accommodation but not harassment prevention

Arbitration board dismisses Jewish employee’s complaint about accommodation but agrees with harassment complaints

Accommodation: Yes. Harassment: Yes.

Discrimination in the workplace can come in many forms, whether from an employer’s treatment of an employee or how the employee’s co-workers treat her. Either way, the employer has an obligation to provide a workplace free of harassment and discrimination, including that based on religious beliefs.

Even if the employer is fulfilling its obligation to accommodate an employee’s religious needs, work-related harassment can happen in other ways.

An Ontario employee’s complaints of his employer’s failure to accommodate his religious beliefs were unfounded but the employer should have done more to address discriminatory comments by his co-workers, the Ontario Arbitration Board has ruled.

Moshe Levy was a package truck driver for United Parcel Service (UPS) in Toronto. On Nov. 30, 2004, Levy was called into a meeting with management to discuss gaps of time in his work day. Though the meeting was scheduled to just be with management, Levy asked company’s manager of HR to participate just before the meeting started.

During the meeting, management asked Levy to account for a large period of time the previous day during which it seem Levy didn’t perform any work. Levy was unable to provide an explanation. However, immediately following the meeting, Levy, who was an orthodox Jew, told the director of HR he felt he was being discriminated against and being treated unfairly. He indicated that he had been subjected to anit-Semitic behaviour in the workplace, so the director of HR asked Levy to put his concerns in writing.

Employee made discrimination complaints after termination meeting

The next day, Dec. 1, UPS informed Levy his employment was being terminated for “theft of time.” After the meeting, Levy again approached the director of HR and made the same allegations. He went home and put together a written document that he delivered to the HR director and asserted:

•Levy complained to his supervisor about anti-Semitic comments written on his truck in dust and crude jokes told by co-workers but nothing was done.

•Another supervisor tried to “poison the other drivers” against Levy by not keeping him informed of shift start times, leading other drivers with less seniority to be bumped when Levy complained.

•Someone put grease on Levy’s steering wheel and hid his keys several times over a three-month period. Levy complained but nothing was done.

•Levy’s manager frequently accused Levy of stealing time and uniform clothing whenever he ordered a new piece of uniform.

Levy threatened to take “further actions” if these actions didn’t stop and said he had “back up,” which turned out to be a letter from the Canadian Jewish Congress (CJC) expressing concern about UPS’s failure to accommodate Levy’s needs regarding Sabbath observance.

The union successfully grieved Levy’s termination and he was reinstated with a five-day suspension. However, he remained off work on stress leave. UPS investigated Levy’s claims, which it said it was not aware of until the termination meeting, and found there was no proof of discrimination, partly because Levy wouldn’t identify anyone who was guilty of discrimination as he “still has to work with these guys.” However, the company’s professional conduct and anti-harassment policy were reviewed with employees and the Toronto management team. UPS also discussed Levy’s concerns with him and emphasized that all discrimination and harassment concerns should be brought to the attention of management and he must co-operate with any investigation.

The issue raised by the CJC letter was puzzling to UPS, since Levy’s shift was during the day and was over before sundown, the time Jews need to start observing the Sabbath (Friday nights) and holidays. Occasionally, UPS allowed Levy to leave work early if he needed time to go home and get ready to be at the synagogue for sundown. However, Levy felt it took too long for UPS to agree to this arrangement and it made him feel pressured and stressed until it was sorted out.

When Levy returned to work in January 2005, he claimed he was subjected to further discrimination from other employees. He also found a swastika drawn in black marker on his truck. The company sent a security team to check it out which determined it had been done in the UPS yard. It washed the truck and then replaced the panel when the swastika didn’t fully come off. It also installed a camera in the yard and an undercover investigator.

Accommodation doesn’t have to be perfect: Board

The arbitration board felt neither UPS nor Levy fully met their obligation on this issue, as Levy didn’t effectively communicate his needs and UPS didn’t make all supervisors who work with him aware of the accommodation. Despite this, however, the board recognized that there was only one occasion in which he was late to the synagogue and “two or three” when he was late leaving work. Due to the uncertainty of variables within the course of a truck driver’s day, such as traffic, it wasn’t possible to guarantee how early he could leave work. The board found a few instances of not fully meeting Levy’s expectations — leading to his feeling pressured to meet his religious obligations — did not detract from the fact UPS overall made an appropriate effort to live up to its obligation of accommodating him.

“The evidence is of substantial compliance, not failure, on the part of the company to accommodate (Levy’s) religious needs,” said the board.

Levy’s allegations of discrimination in the workplace were varied and though he claimed to have complained to supervisors, the evidence showed he didn’t make many of his concerns clear until his job was in jeopardy, said the board. In some cases, Levy said he had lost trust with management and didn’t bother to report anything. The board also pointed out that Levy’s list of concerns he wrote up for the director of HR didn’t include the accommodation issue, which he claimed had been ongoing from the start of his employment. The details of his other accounts were also “all over the map,” which made it difficult for UPS to address them.

The board found Levy made it difficult for UPS to investigate his allegations about offensive comments and jokes because he didn’t identify anyone. However, UPS should have reassured him that everything would be treated confidentially, it would investigate thoroughly and there would be no reprisals, which it did not.

UPS also didn’t do enough to address the swastika on Levy’s truck, the board found. Though it was determined it was probably drawn by a UPS employee — or at least on its property — UPS should have done more. Such a hateful message and defacing of company property should have resulted in a clear message to employees that such misconduct would not be tolerated.

“While the company can be commended for the steps that it did take to try to prevent a recurrence (the camera and the investigator), that was not enough; it needed to go further,” said the board. “The problem appears to have been insidious and it needed to be addressed immediately and specifically with employees generally.”

The board also found some of the animosity of other employees towards Levy was related to his accommodation and not understanding why he was leaving work early on some days. However, little was done by UPS to communicate why Levy was being accommodated and how important it was to his religious beliefs.

The board found no evidence supporting Levy’s claims of supervisors poisoning others against him or making accusations of theft as his accounts were inconsistent and dismissed those allegations. It also found his accusations of grease on his steering wheel and hidden keys were common pranks all drivers experienced.

“All of these events appear to have happened, but I am unable to conclude that they were directed at (Levy) specifically or that he was so much more a victim of them than anyone else,” said the board. “This is the same conclusion to which the company came following its investigations.”

The board found UPS did not discriminate against Levy’s religious beliefs and properly accommodated his need to take off work early on occasion. However, it failed in its obligation to provide a workplace free of discrimination and harassment by not properly addressing his concerns with comments and attitudes of his co-workers.

For more information see:

United Parcel Service Canada Ltd. V. Teamsters, Local 938, 2011 CarswellOnt 10173 (Ont. Arb. Bd.).

Accommodation a balance of needs

The Ontario Arbitration Board’s comment that accommodation must be a balance between the needs of the employee and the employer:

“(Levy’s) need for accommodation is something that operates in the real world, not the perfect world. (He) is not just an adherent to a particular religious faith, he is also a package truck driver. He is not just someone whose religious beliefs require him to attend at synagogue, he is also someone whose employment obligations require him to attend at work. These two things — religion and work — must be accommodated, one to the other. Unfortunately, as occurred here, such accommodations are rarely perfect, for either party. Sometimes things don’t work out and when they don’t, it doesn’t necessarily mean, as (Levy) would clearly have it, that his religious rights have been trampled upon. ‘Pressure’ is a fact of life and, more importantly, a fact of (Levy’s) work for the company.”

Latest stories