When accommodation becomes discrimination

CBSA conducts balancing act between rights of workers, customers

For employers, the issue of competing human rights can be a difficult balancing act. What happens when customers require accommodation that could potentially impact the human rights of employees?

Canada Border Services Agency (CBSA) managers found themselves juggling these competing interests when a small group of Hindu priests — known as sadhus — were allowed to avoid screening by female border guards at Toronto Pearson International Airport.

Travelling through Pearson’s Terminal 3 on the evening of July 28, the group requested only to be served by male officers in order to comply with their religious beliefs.

A female CBSA officer spoke anonymously with CBC, saying she and her colleagues were instructed before their shift not to switch work stations without first asking a supervisor for permission. The officers were informed the group of travelers needed to avoid contact with women for religious reasons. The group was processed separately, exclusively screened for entry into Canada by male officers.

Critics claimed the decision could undermine the efforts of CBSA guards to protect Canada’s borders.

The CBSA, however, said the accommodation in no way compromised the rights of its employees or the rights of Canadians to safe and secure borders.

"Equal treatment under the law, regardless of gender, race or religion is a fundamental Canadian value," said CBSA spokesperson Patrizia Giolti. "While CBSA will take reasonable steps to accommodate travelers when appropriate, we will not compromise the rights of Canadians."

But the Customs and Immigration Union (CIU) and the Public Service Alliance of Canada (PSAC) had a different take.

"We believe the employer has a responsibility to balance religious accommodation and workers’ and women’s rights while keeping in mind we’re providing the front line of defense to Canada," said CIU’s first national vice president Jason McMichael.

"One does not supersede the other and when there’s a conflict, it’s up to the employer to find a solution that doesn’t trample on either right and respects the law, the workers and the clients. The removal of the female employees didn’t do that. The CBSA got this one wrong."

McMichael said the union plans to work with the employer moving forward in an effort to help the CBSA learn from this misstep.

"Open communication with the union members on developing best practices is key," he said. "Trampling on the rights of women in order to accommodate a religious request certainly isn’t the answer and in fact makes an already sensitive issue much worse. Our members have a wealth of knowledge that is far too often overlooked by the employer when these issues come up."

PSAC agreed the CBSA needs to work diligently to repair any damage done to its relationship with employees. A statement from the union said the CBSA’s decision undermined workers’ ability to do their job and demonstrated an irresponsible and disrespectful attitude towards employees.

"As a woman and a federal public servant I find this not only objectionable but offensive," said Robyn Benson, national president of the PSAC. "CBSA has an obligation to treat all of its employees equally."

PSAC is consulting legal counsel to ensure the CBSA is prevented from taking similar measures again.

Daniel Chodos, an employment lawyer with Toronto-based firm Whitten & Lublin, said the situation is much more complicated than it might appear on the surface.

"We don’t have all the facts right now," he said. "We’re primarily hearing one side of the story."

In order to make a better judgment, Chodos said it was necessary to learn what exactly the CBSA knew about the priests’ religion. Knowing what, if any, research went into the decision to accommodate the request could affect the argument. The way in which employees were informed of the decision to accommodate — and the details of the accommodation itself — is also crucial.

"A lot of these cases come down to dignity and respect for people. If it was a disrespectful or undignified manner in which the female employees were treated, I think they’d have a much better human rights case than if CBSA did everything in its power to minimize the impact on them," Chodos said.

Section 5 of the Canadian Human Rights Act deals with the provision of goods, services, facilities or accommodations available to the general public. Chodos pointed out the act doesn’t reference Canadian citizens or even Canadian residents, but the general public, which he believes covers visitors to the country. The act states it is impermissible to deny access to any such goods, services, facilities or accommodations or to treat someone differentially on the basis of a prohibited ground — one of which is religion.

Simultaneously, Section 7 of the Canadian Human Rights Act states it is a discriminatory practice to refuse to employ, continue to employ or to differentiate adversely in relation to an employee based on a prohibited ground — including sex.

"As a general concept the Supreme Court of Canada has been very clear that once either of these obligations is engaged, an employer has an obligation to accommodate someone to the point of undue hardship," Chodos said.

Undue hardship must be assessed on a case-by-case basis and cannot be considered in a vacuum, or without all of the necessary information. Part of the analysis in accommodation to the point of undue hardship, he said, would be the potential impact on another person’s human rights.

"In my view, as long as CBSA did everything in its power to minimize any adverse impact on its employees in accommodating the group, the employees would likely have an uphill battle to establish discriminatory treatment on the balance of probabilities."

Chodos recommended employers consult with legal counsel specializing in this area of law before making an accommodation whenever possible. While each case needs to be considered in its own context, he said it is not unreasonable for an employer to ask for information and seek evidence when an accommodation is requested.

"Based on the comments I’m seeing, I think there’s a bit of a simplistic view that’s being taken by a lot of people, which is understandable, but this is a complex situation," Chodos said. "That’s why we have to learn more before we really draw these conclusions."

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