Question: We have an employee who claims his religion requires him to spread the “word of God” and attempt to convert his co-workers to his particular denomination or sect. Given the duty to accommodate employees’ religious beliefs up to the point of undue hardship, are we required to allow him to proselytize to his co-workers at work? Several employees have complained.
Answer: While it is true employers are required to accommodate employees’ religious beliefs up to the point of undue hardship, problems can occur under human rights legislation where the rights of one individual compete with the rights of others.
Similarly, some religious beliefs and practices may even contravene some of the other prohibited grounds of discrimination. What happens, for example, if someone’s deeply held religious beliefs are such that she believes homosexuality is an abomination?
Others may have deeply controversial views about topics such as transgender rights, abortion, the consumption of alcohol or contraception. This can cause problems when religious employees try to label their colleagues’ beliefs and lifestyles as “sinful.”
While people’s religious beliefs can be an important part of their identity and they should be able to talk about those beliefs in the workplace, preaching or attempting to convert others goes too far.
The workplace shouldn’t have to be a “religion-free zone,” but the interests of tolerance and diversity dictate that other employees cannot be insulted, harassed, demeaned or discriminated against in the name of religion.
This also applies to beliefs traditionally associated with an individual’s current religion. In other words, freedom of religion should also include freedom from religion.
The duty to accommodate isn’t absolute and does not extend beyond the point of undue hardship.
In addition to limits on the duty to accommodate under human rights legislation and case law, major problems can arise when one individual’s rights compete with another’s rights under the governing human rights legislation. Competing rights can arise not only with respect to different prohibited grounds of discrimination (such as religion versus sexual orientation), but also in relation to the same ground (one person’s religious beliefs versus another’s competing beliefs).
While the wording of the various human rights statutes across Canada differs, most allow for the accommodation of sincerely held beliefs based on religion or creed.
This concept is important because it recognizes that religious beliefs can be subject to individual interpretation or degree of adherence. Therefore, the duty to accommodate can arise with respect to an individual’s religious beliefs, even if not everyone of that particular faith follows the same practices or beliefs.
That does not mean, however, that individuals who argue they are required to “spread the word” as part of their religion should be allowed to do so in the workplace. Again, this is an issue of competing rights under human rights legislation.
The 2008 British Columbia Human Rights Tribunal decision of Friesen v. Fisher Bay Seafood Ltd. provides a good example. Seann Friesen worked at a fish processing plant. He argued that his religion required him to preach to others, and try to convert his colleagues during work hours. But some co-workers objected.
After being promoted, Friesen was asked to stop preaching and attempting to convert employees during work hours. He refused and his employment was terminated. As a result, he made a complaint to the B.C. Human Rights Tribunal.
The tribunal upheld the employer’s decision to terminate, finding there was a bona fide occupational requirement based on the competing rights of other employees that the complainant not preach to or try to convert them during work hours.
The employer was required to maintain an environment where the religious beliefs of everyone were respected and employees felt comfortable. The tribunal found the employer had done everything it could short of undue hardship, and termination wasn’t too heavy-handed a response.
The law and practice are similar in other jurisdictions. For instance, the Ontario Human Rights Commission has a policy on competing human rights, which makes a distinction between claims that solely affect business operations and claims that affect other individuals. Claims that affect others are competing rights claims.
The commission articulated several principles governing competing rights claims:
•There is no hierarchy of rights under human rights legislation, and no right is absolute.
•Context is important and has an impact on competing rights claims.
•It is important to determine which rights are involved and whether those rights are actually being infringed. Nevertheless, employers must take care not to make assumptions or stereotype others based on their beliefs.
•Employers should balance the extent of rights infringement between different individuals.
Employers and employees should try to find compromises wherever possible. It is best practice to involve everyone in the accommodation process before resorting to an extreme measure such as termination.
Brian Kreissl is the Toronto-based product development manager for Thomson Reuters Legal Canada’s human resources, OH&S, payroll and records retention products and solutions.
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