On September 19, 2013 I attended the Devry Smith Frank LLP Exclusive Human Resources Seminar Series at the Don Valley Hotel & Suites in Toronto. My notes from this session follow.
Religious Accommodation in the Workplace
L. Viet Nguyen discussed the challenge of accommodating religious practice and expression in the workplace. Religion is a fundamental freedom, guaranteed in the Charter, and discrimination on the basis of creed is prohibited by the Ontario Human Rights Code.
Religious accommodation in Canada is governed by a 2-part test from the 2004 SCC case of Amselem v. Syndicat Northcrest:
- employers are required to accommodate to the point of undue hardship
- employers must create a work environment where a worker is able to benefit from all rights
The way that this test has been applied over the past decade has changed considerably, especially where religious practices may conflict with job duties. The duty to accommodate is subject to scrutiny on the basis of reasonableness, and the responsibility for this accommodation no longer falls exclusively on the employer. Employees also should demonstrate some measure of reasonableness when an employer is looking to accommodate religious practices.
The duty to accommodate is limited by the concept of undue hardship, which will examine the financial costs, any disruption of the collective agreement, problems of morale for co-workers, and the size and interchangeability of the workforce and operate. An employer is not required to completely exhaust their resources to accommodate, and there will be scrutiny of how much change is required for operational practices for the accommodation, and how this may disrupt work.
A unified approach has emerged, which recognizes that everyone has a role in developing religious accommodations in the workplace, including the employee. This modern approach examines whether a measure or policy is rationally connected to the job performance; whether a sincere belief exists that this measure or policy is necessary for legitimate work-related purposes; and whether or not it is impossible to accommodate an employee without undue hardship. Although this duty used to focus on the role of the employer exclusively, it now also looks at the conduct and role of the employee.
For employers the appropriate risk management strategy is to be proactive and involve all of the parties, including the employee, the union and counsel, at a very early stage. Most employers only obtain legal advice once a dispute escalates, but the role of counsel, even if behind the scenes, can often help defuse situations. Relevant exceptions in legislation should be considered, especially for specific industries. The employer should focus on reasonableness, with the understanding that they may not always have to fully accommodate practices if they can show that considerable discussions and efforts were made to make reasonable accommodations. Employers should also fully utilize alternative dispute resolution mechanisms to help resolve disputes over religious accommodation.
Accommodation of Family Status
Flora M. Poon introduced the growing topic of accommodation of family status in the workplace. Family status is defined under the Ontario Human Rights Code as “being in a parent and child relationship,” but the case law has expanded this definition well beyond just parents and children. The protected relationship is not necessarily found on blood or adoption ties, but also includes relationships based on care, responsibility, or commitments. In part, this reflects the changes observed in family structure in Canada, in particular the increase number of families who care for elderly parents. Although this duty is typically associated with caregiving needs, this too may change over time as family structures continue to change.
Family status conflicts can arise in the workplace in a number of different ways. An employee can be terminated because a manager will not provide a flexible work schedule to take a parent for medical appointments during normal working hours. An employee may be denied an promotion because a manager believes that mothers are not fully committed to their work. An employee may be forced to use vacation days to attend to caregiving needs, and consequently has a lower level of benefits than others. Some employers are dealing with some of these concerns proactively, and provide their employees days off instead of just sick days and vacation days, to allow employees to have more flexibility in the workplace.
The duty to accommodate family status will only arise when there is a prima facie case of discrimination. This normally becomes an issue where the rules, polices, practice or institutional structures create disadvantages for persons with a particular family structure. The duty has both a substantive and procedural component. The test for accommodation is derived from British Columbia (Public Service Employee Relations Commission) v. BCGSEU (sub-nom Meiorin) at para. 54. Once a prima facie case is established, employers must demonstrate that a standard, requirement, policy or rule:
- was adopted for a purpose or goal that is rationally connected to the function being performed;
- was adopted in good faith, in the belief that it is necessary for the fulfilment of the purpose or goal; and
- is reasonably necessary to accomplish its purpose or goal, in the sense that it is impossible to accommodate the claimant without undue hardship.
A narrow approach towards applying this test was found by the B.C. Court of Appeal in Health Sciences Assoc. of B.C. v. Campbell River and North Island Transition Society. The employer, which operated a safe shelter for women and children suffering marital abuse, changed the hours of work for genuine business reasons. The employee had four children, one of which had severe behavioural problems which required her to care for her child after hours. The medical evidence provided by the employee demonstrated that the child was very high needs with a major psychiatric disorder, and that the mother’s care was “an extraordinarily important medical adjunct to [the son’s] ongoing management and progression in life.” The court found that the duty falls between the two positions requested by the parties, but that this change in hours reflected “a serious interference with a substantial parental or other family duty or obligation of the employee.” The court held that if caregiving needs do not go beyond ordinary demands there would not be the basis for an employee complaint.
This narrow approach was rejected by the Human Rights Tribunal of Ontario in Devaney v. ZRV Holdings Limited, which instead looked to whether the employee was adversely impacted on the basis of a requirement imposed by the status of a caregiver. An employee with 27 years of service was required to care for an elderly parent, and began working from home in order to balance both responsibilities. The employer insisted the employee work in the office during business hours and terminated her. The Tribunal awarded $15,000 and ordered the employer to develop and implement policies and training for accommodation. There Tribunal found be no prima facie case established if any adverse impact relates only to an employee’s preference or choice, and rejected the line of cases requiring a higher threshold for family status claims where a serious interference with a substantial parental duty was required. In this case the employer had failed to make meaningful inquiries about the employee’s need for accommodation.
An even more expansive approach towards family status is found in Federal Court case of Attorney General of Canada v. Fiona Anna Johnstone and Canadian Human Rights Commission. This case also rejected the “serious interference” line of cases. The employee in this case had an irregular rotating shift schedule, and requested a 13-hour shift to better allow for child care. The employee policy only allowed for fixed shifts for their part-time employees and refused the request. The court rejected the employer’s undue hardship argument because the employer undertook no analysis or consultation on how they could accommodate the employee, and because the employer’s policies discouraged employees from seeking accommodation. The employer did have plans for allowing full-time employees to have fixed shifts in the possibility of disability, but was unwilling to extend this flexibility to child care.
The best practices for emplolyers in dealing with family status accommodations is to consider the following:
Don’t dismiss requests out of hand. Upon learning of an employee’s request to satisfy his/her family responsibilities, employers should engage in an immediate dialogue to determine the scope of the employee’s needs and to design an accommodation strategy if necessary.
Document the accommodation process. Employers should make carefully documented inquiries to determine whether the accommodations (e.g., working from home, modified hours, absences for family medical appointments) are in fact reasonably related to caregiving obligations and whether such obligations rise to the level of necessity or are a mere preference or matter of convenience. For example, if an employee advises that he/she wants to modify his/her hours of work to leave at 4 p.m. because daycare pick-up requires the employee to do so, it is reasonable for the employer to make a request in writing for the employee to confirm what other daycare options are nearby, what inquiries the employee has made regarding those options and whether there is another person who could pick-up the child at daycare.
Policies must be reasonable. Employers should consider the flexibility of their attendance policies to determine whether employees with caregiving or other family responsibilities are able to work effectively from home or during non-traditional hours where technology and circumstances permit.
Gather evidence of undue hardship. Bald assertions about flexible work arrangements negatively affecting workplace morale were rejected in Devaney. It is important to gather objective evidence related to productivity (e.g., sales results, 360 performance reviews) before taking the blanket position that employees cannot work from home.
Amanda McLachlan of Bennett Jones concludes in a blog post on the subject,
Ultimately, there is still a level of uncertainty in this area of the law which is unlikely to be resolved until the number of decisions in this area increases. Despite the uncertainty however, it does seem clear that the earlier lines of cases requiring a higher threshold for family status claims have been rejected. This shift away from tests that imposed a sort of two-tiered human rights regime in which the threshold required to demonstrate discrimination on the basis of family status seemed to be higher than the threshold required to establish a prima facie claim on the basis of other enumerated grounds is likely not surprising. The Ontario Human Rights Code and the Canadian Human Rights Act is intended to provide protection equally, across all of the enumerated grounds.
As a result of Devaney, for now, employers in Ontario may still be able to refuse accommodation that is based merely on an employee’s preferences and not related to genuine “needs”. However, employers within the jurisdiction of the Canadian Human Rights Act will likely continue to be held to a slightly higher standard. Regardless of which regime applies to your workplace, what is clear is that employers faced with accommodation requests will be well advised to follow certain best practices, including ensuring they don’t dismiss accommodation requests out of hand.