Quebec judge has more latitude than employers
Recently, a story made headlines that showed Quebec judges enjoy broad discretion to run their courtrooms as they see fit. Quebec Justice Eliana Marengo refused to hear Rania El-Alloul’s case unless she removed her hijab, leaving her little recourse.
That is not the case for the workplace. Neither the boss, company values, customers or other employees can demand this. Human rights legislation prohibits discrimination in employment on the grounds of creed or religion. If an employee must wear a head covering because of the imperatives of their faith (be it a hijab, turban or kippa), an employer must accept it. Even customer preferences, let alone those of other employees, is not a defence.
But religious practices are not limited to attire. Other faith-related workplace issues include: Providing time off for religious holidays or to attend prayers during working hours; changing schedules to accommodate Sabbaths and holy days; providing breaks and prayer rooms (or at least a quiet place to pray); and making changes to dress codes or uniforms.
As I have often written, employers bear significant responsibility to ensure their employees do not feel ostracized or polarized. Employers need to ensure their workplace policies are in line with Canadian values of inclusion, diversity, and tolerance of things they might not care about, or even understand.
The following cases make it clear that human rights tribunals expect employers to foster an inclusive atmosphere for their religious employees.
In the 2013 case of Henry vs. Consumer Contact ULC, the employer was found to have discriminated against a Jewish woman by brushing off her request to reschedule training that interfered with the Sabbath (requiring Saturdays off).
In Loomba vs. Home Depot in 2010, the tribunal found that the company discriminated against a Sikh man who could not wear a hard hat, because it interfered with the turban he wore as an element of his faith.
The tribunal has shown particular distaste for employers that don’t try to facilitate religious accommodation. In the 2009 case of Qureshi vs. G4S Security Services, the employer did not consider whether it could employ a Muslim who needed to take an hour off for Friday prayer, but rather simply informed him that his application was being discontinued.
Understandably, clients ask whether they can ever raise the issue of religion with employees if it is deemed to interfere with work. The answer is rarely.
Maybe tribunals’ pervasive prescriptions against employers addressing religion in the workplace need to be challenged more often.
In 2011, a court reversed a tribunal’s finding in Saadi vs.
Audmax. The court found that there had been no discrimination when the employer expressed concerns as to employee Seema Saadi’s flashy hijab (alleged by Saadi to be a tenet of her faith). The employer said it challenged Saadi’s use of her flashy head covering because it violated its business casual policy. It took no issue with the more subtle covering she wore during the first six weeks of her employment. The court delved into the religious tenants of Saadi’s faith in a deeper analysis than the tribunal had, finding that the style of the head covering could be reasonably debated without violating an employee’s rights under the code.
Accommodating religious diversity in your workplace is important. Here are some best practices to follow:
Be wary of making comments that could trample on someone’s religious beliefs. If the inappropriate comments are made by another employee, you should discipline that employee and shift liability from yourself. If you make the comments, that will be much more difficult.
Recognize that people may require specific accommodations for their religion. Refrain from making assumptions about how people practise their faith. If someone asks for an accommodation based on their religion, you are not precluded from making inquiries (e.g., what is the religious significance of attending Friday prayer, at particular times, for a Muslim employee?), but do so in good faith and with the aim to accommodate the employee if you can.
Religious garb is a subject to be avoided where possible. If the religious dress does not interfere with the company’s business operations, don’t address it.
Remember that the duty to accommodate is not absolute. If accommodating an employee’s religious beliefs will cause the company legitimate problems, speak to an employment lawyer. You may be able to effectively argue that the accommodation will cause the company actual undue hardship and not merely inconvenience. Howard Levitt is senior partner of Levitt & Grosman LLP (levittgrosman.com), employment and labour lawyers. He practises employment law in eight provinces and is author of The Law of Dismissal in Canada. Employment Law Hour with Howard Levitt airs Sundays at 4 p.m. on CFRB in Toronto.