An employee’s religious beliefs or practices can sometimes conflict with workplace duties.  This can present challenges to employers, especially when the religion is not well-known to the employer.  How can an employer best handle this situation?

Canadian society is becoming increasingly diverse.  In many cases, an individual’s religious observances will primarily occur outside of the workplace.  However, there will be some cases where an employee’s religious beliefs or practices conflict with a workplace requirement or practice.  This can present particular challenges to employers, especially when the religion is not well-known to the employer.  How can an employer best handle this situation?

First, an employer must understand its legal obligations.  Human rights legislation across Canada protects individuals from discrimination based on certain prohibited grounds, including “religion” and/or “creed”.  These terms generally refer to a religion or a faith and include the practices, beliefs and observances of that religion or faith.  Courts and tribunals have ruled that this protection also extends to personal religious beliefs, practices or observances, even if they are not essential elements of the religion or creed, provided they are sincerely held.  Additionally, the terms “religion” and “creed” have been broadly interpreted so as to include the spiritual faiths or practices of aboriginal cultures, as well as those of unconventional, minority religions.
An employer has a duty to accommodate an employee’s religious observances to the point of undue hardship.  Accommodation involves an individual analysis and the most appropriate accommodation must be determined for each employee on an individual basis.  Undue hardship is an onerous standard.  In deciding cases of undue hardship, courts have considered factors such as safety, cost, the size of the employer’s operation, the interchangeability of the workforce and facilities and the disruption of a collective agreement.  In several provinces, determination of undue hardship may involve reference to definitions under statute.  In general though, the two factors that receive the most attention in the caselaw are cost and safety.
What types of conflicts can arise?

One common conflict occurs when employees inform the employer that they require certain days off for religious observance.  For example, in the 2004 British Columbia Human Rights Tribunal case of Derksen v. Myert Corps Inc. (No. 2), a coordinator for a youth job preparation program asked his employer for five days off per year for religious observance, as well as an additional day off on each lunar New Moon, which occurred every twenty-nine days.  The employee stated he was unable to perform any work on those days because of his religion, the Christian Churches of God.  The employer refused the employee’s request in large measure.  It later terminated the employee, in part because he failed to report to work on a day that the employer had specifically denied him permission to take off for religious observance.  The Tribunal found that the organiztion contravened the Human Rights Code because the employee’s religion was one of the reasons for his termination.

Another conflict may arise when employees tell the employer that they cannot work certain shifts for reasons of religious observance.  This is the situation that confronted Ford in the 2002 Ontario Divisional Court decision of Ontario (Human Rights Commission) v. Ford Motor Co. of Canada.  Two employees who worked as gas tank installers for Ford informed their employer that they could no longer work their scheduled Friday night shifts.  The employees had become interested in the Worldwide Church of God, which prohibited working on the Sabbath -- observed from sunset on Friday to sunset on Saturday.  Ford refused the employees’ requests to be permanently excused from working their Friday night shifts and although various options for accommodation were discussed, no consensus was ever reached.  The Court held in this case that Ford had done all it could to accommodate the employees and that any further accommodation of the employees would have caused Ford undue hardship.  This result was largely due to unique and specific facts, as Ford led key evidence about historically high absenteeism rates on Friday nights and resulting quality control problems.

Another conflict arises when employees refuse to do certain tasks which they believe are prohibited by their religion.  In the 2001 British Columbia Human Rights Tribunal case of Jones v. C.H.E. Pharmacy Inc., an employee who worked as a merchandiser at a national drug store chain refused his supervisor’s request to set out poinsettias on display during the Christmas season.  As a Jehovah’s Witness who did not participate in the celebration of Christmas, the employee felt that performing this task was against his religious beliefs.  The employee was dismissed for his failure to complete the task and the employer’s conduct was found to have contravened the Human Rights Code, as no effort was made to accommodate the employee.  Similarly, in the 2004 Ontario Human Rights Tribunal case of Henry v. Kuntz (No.2), an employee of a bakery shop who ascribed to the Rastafarian faith refused to make and decorate gingerbread houses on the basis that the activity was a pagan ritual contrary to his religious beliefs.  In this case, however, the employer was successful in defeating the employee’s human rights complaint as the employee had not communicated his reasons for refusing to make the gingerbread houses to the employer in an understandable way.
In some of the cases mentioned above, the employer was successful in defeating a human rights complaint, while in others, the employer was not.  The following tips provide guidance for employers trying to avoid the pitfalls when dealing with similar accommodation issues:

Ensure an open channel of communication with employees. 
Employees who require accommodation have a responsibility, and should be encouraged to, inform their employers of their accommodation needs and the reasons for them.

Be sure that you understand what the employee is requesting. 
If the employee does not provide enough information for you to decide how to accommodate him or her, consider requesting additional information -- either from the employee or from a designated official within the employee’s religious community.  However, this inquiry should be restricted to gathering only the information necessary for accommodation.

Involve the union (where applicable)
While the employee does not have to come up with a solution, he or she does have a responsibility to cooperate in the process.  If your organization is unionized, the union also has duty to be involved in determining appropriate accommodation.  Remember too that the employee must not refuse reasonable accommodation.

Be flexible and creative in finding suitable accommodation. 
If possible, present several options to the employee.  If the issue involves an employee’s request for days off or changes to his or her hours of work, consider alternative scheduling arrangements.  These may include establishing a compressed work week or alternative arrival and departure times on the days when the employee cannot work the entire period.  You might also consider agreeing to have the employee trade lunch times for early departure or staggered work hours.  If your organization has any existing policies or collective agreement language providing for paid leave with “good reason” or “valid excuse”, consider using them.  If the issue involves a refusal to do certain job duties, clearly examine the reasons behind the refusal; many employers fail to understand the employee’s reasons, and view the refusal as simple insubordination. Once you understand the employee’s reasons, analyze how critical the task is to the position and to the organization as a whole, and determine if it can be assigned to someone else, perhaps by redistributing tasks among co-workers or shifts, contracted out, or eliminated if unnecessary.

Document all accommodation discussions and attempts at accommodation. 
This will be useful in the future if your organization is faced with a human rights complaint and you need to demonstrate the efforts you made to seek appropriate accommodation.

Before refusing to accommodate an employee or disciplining an employee that your organization believes is inappropriately requesting accommodation, obtain legal advice.  In the event of a complaint, your organization will need to be prepared to demonstrate that it either did not discriminate against the employee on the basis of religion or that the employee’s accommodation needs could not have been met without undue hardship.
Although accommodating an employee’s religious observances can be challenging, an employer who engages in a good faith search for appropriate accommodation, in a spirit of tolerance and respect, will be well-placed to defend its actions if the need arises.

Christina Hall is an associate in the Toronto office of Fraser Milner :Casgrain LLP, where she practices employment, labour and human rights law. She can be reached at: This e-mail address is being protected from spam bots, you need JavaScript enabled to view it

Catharine Osborne is a partner with Fraser Milner Casgrain LLP, where she specializes in labour and employment law. She can be reached at: This e-mail address is being protected from spam bots, you need JavaScript enabled to view it