Ontario employers have a duty to accommodate employees with respect to any protected ground under human rights legislation. This includes religion.
The Ontario Human Rights Code does not protect people on the basis of “religion”, but rather protects against discrimination on the basis of “creed”. Creed is defined on a subjective basis, meaning that an individual’s religion does not need to be “mainstream” or widely-held to be protected. Individuals are protected from discrimination on the basis of creed as long as their religious beliefs are sincerely held.
Every employee has the right to equal treatment without discrimination on the basis of these sincerely held beliefs.
Employers have a duty to accommodate employees’ religious beliefs and practices. The duty to accommodate arises in the context of creed where an employee’s religious beliefs or practices conflict with a job requirement. This may arise, for example, with a Jewish employee who observes the Sabbath by refraining from work between sundown each Friday and sundown the following Saturday. An employer would typically be required to accommodate such an employee by providing them time off work during that period.
Religious accommodation might also include:
- Providing time off for religious holidays or time away from work to attend prayers;
- Providing breaks and prayer rooms (or at least a quiet place to pray);
- Making changes to dress codes or uniforms; and,
- Dealing with dietary restrictions by allowing menu options when food is served in the workplace.
Accommodation on the basis of religion or creed is fundamentally equivalent to every other form of accommodation: where a work requirement interferes with an employee’s needs in the context of a prohibited ground of discrimination, the employer must accommodate those needs to the point of undue hardship.
Undue hardship in the context of religious accommodation takes into account only two factors: (1) the cost to the business, and (2) any health and safety risks to the employee or others of providing the accommodation. For the costs of an accommodation to amount to undue hardship, they must be “so substantial that they would alter the essential nature of the enterprise, or so significant that they would substantially affect its viability”. In determining whether the cost of an accommodation amounts to undue hardship, the size and nature of the organization and its financial circumstances will be considered.
When approached with a request for religious accommodation, an employer should communicate with the employee to understand the nature of the request and the desired accommodation. Some requested accommodations might be essential for observation of the employee’s religion, while others may simply be preferences which do not trigger an obligation to accommodate. Employees are the best source of information about how to accommodate their requests, and employers are encouraged to ask for details.
An employer should consider all available options before making a decision about whether and how to provide accommodation. Dismissing a request outright as too expensive to implement or unfair to other employees could lead to an adverse finding by the Human Rights Tribunal of Ontario. Employers must also be able to demonstrate their efforts to accommodate. If an employer cannot show that it has attempted to accommodate a request, the HRTO may not accept the employer’s evidence that it did, in fact, attempt to accommodate.
While there is no foolproof guide to religious accommodation in the workplace, employers who communicate with their employees and take a reasoned approach to assessing accommodation requests can achieve workable solutions and avoid unfavourable scrutiny.
For more information and case summaries on workplace religious accommodation and discrimination please visit www.MinkenEmploymentLawyers.com.
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