Under human rights legislation in all jurisdictions in Canada, employers cannot ignore the religious needs or observances of employees but must work with employees to try to accommodate them. In addition, the Canadian Charter of Rights and Freedoms protects freedom and expression of religion. This means that employers may not treat employees more or less favourably because of their religion. Further, employers must take steps to prevent religious harassment and discrimination of their employees. However, what most employers struggle with is what religious beliefs must be accommodated.

Religious employees often confront conflicts between their employment obligations and their religious obligations. Human rights legislation and the Charter require employers to try to accommodate those obligations. Specifically, an employer must reasonably accommodate an employee’s creed, religious beliefs, observances and practices unless doing so would cause undue hardship on the way the employer’s conducts business.

The protection of creed, religious beliefs, practices, observances (depending on the obligations found under human rights legislation in different jurisdiction) applies even if the practices, observances or beliefs are not essential elements of the religion, provided they are sincerely held by the person.

Accordingly, an employer need only accommodate the employee’s “sincerely held” religious beliefs, observances and practices. The challenge, however, can be determining to what extent an employee’s religious objection to a particular work requirement is, in fact, “sincerely held.”

If it is a sincerely held religious belief, observance or practice, employers must provide a reasonable accommodation to the point of undue hardship.

So how do you determine a sincerely held religious belief?

The Supreme Court of Canada has held religion to be about sincere and “deeply held personal convictions or beliefs connected to an individual’s spiritual faith and integrally linked to his or her self-definition and spiritual fulfilment, the practices of which allow individuals to foster a connection with the divine or with the subject or object of that spiritual faith” (Syndicat Northcrest v. Amselem, 2004 SCC 47 CanLII).

The law is intentionally vague to provide protection and accommodation for a broad spectrum of religious observances, practices and beliefs, not merely those beliefs based upon the organized or recognized teachings of a particular religion. Therefore, religious beliefs need not be acceptable, logical, consistent or comprehensible to others to be entitled to protection, and courts must not presume to determine the place of a particular belief in a religion or the plausibility of a religious claim. In short, the fact that no religious group espouses such beliefs, or that the religious group to which the individual professes to belong may not accept such belief, will not determine whether the belief is a religious belief.

However, the religious accommodation rules do not apply to requirements based on personal preferences rooted in non-theological bases such as culture, heritage or politics.

Employees must be clear when explaining why they need an accommodation based on religious grounds. Just saying that he or she cannot work on a particular day because of cultural tradition will not suffice. The employee must clearly state that he or she is required not to work because of religious beliefs.

Furthermore, for purposes of accommodation, the definition of religion may also include people who do not hold religious beliefs or follow religious practices. (Refer to Kurvits v. Canada (Treasury Board) (1991) 14 CHRR D/469 (C.H.R.T).)

When requesting accommodation based on religious grounds, employees are not required to justify or prove anything about their religious observances, practices or belief to the employer (e.g., note from their clergy). For this reason, it is not appropriate to ask an employee to provide evidence that a particular practice or belief is required by a religion.

What is important is for you to talk to your employee to find out about the sincerity of the belief. The Canadian Human Rights Commission guidelines indicate that:

Sincerity can be assessed by analyzing whether the alleged religious belief is consistent with the individual’s other current religious practices. Therefore, where an employee’s religious belief is less clear, the employer can inquire into the sincerity of the belief by considering the following:

• The spiritual or moral nature of the belief, or both
• Previous religious experience
• The relationship between those previous religious beliefs and current beliefs
• The connection between the religious belief and the requested accommodation
• The extent to which the religious beliefs are applied in the employee’s daily life

If you need additional information for the purposes of accommodation only, you can request additional information from a designated official within the employee’s religious community.

Duty to accommodate to the point of undue hardship

The protection and accommodation of religion should be done keeping in mind that human rights legislation attempts to recognize the inherent dignity and worth of every person and the need to provide equal rights and opportunities without discrimination. The objective of the legislation is to help foster an environment of understanding and mutual respect for the dignity and worth of each person, so that they may feel like a valued part of the community that is able to contribute to that community.

Under the Canadian Human Right Act (and most provincial human rights legislation), an employer should accommodate religious belief when an employee’s religious beliefs, observances or practices conflict with a workplace requirement, qualification or practice. The accommodation may modify a rule or exempt an employee from it. Dress codes, break policies, scheduling and recruitment procedures may affect some employees because of their religious beliefs, unless these employees are accommodated.

The duty to accommodate is not limitless, but also requires more than minimal effort. The duty to accommodate requires “reasonable” efforts short of “undue hardship”. This level of accommodation has been explained by the courts as requiring reasonable steps to accommodate without undue interference in the operation of the employer’s business and without undue expense to the employer.

The addition of the term “undue” before “hardship” makes it clear that some level of hardship or expense on the part of the employer will need to be assumed. What will be considered undue for one employer will not necessarily be considered undue for another. The courts have therefore acknowledged that determining whether appropriate efforts at accommodation have been met is a subjective test, evaluated on a case-by-case basis.

What can be expected by the employee seeking accommodation is also limited by reasonableness.

Courts have indicated that a certain level of accommodation may be acceptable if it meets the needs of the person to the greatest extent possible, short of undue hardship, and if it respects the dignity of the person requiring the accommodation.

An employer may not simply refuse to accommodate an employee. If the employer claims that accommodation is not feasible because it would result in an undue hardship, the employer must demonstrate the effect accommodation would have on the business; that is, the employer must prove the undue hardship.

The obligation to combat discrimination is not left solely at the foot of the employer. The courts have stated countless times that:

Discrimination in the workplace is everybody’s business. There can be no hierarchy of responsibility. There are no primary and secondary obligations to avoid discrimination and adverse effect discrimination; companies, unions and persons are all in a primary and equal position in a single line of defense against all types of discrimination.

For example, in Ontario Human Rights Commission v. Ford Motor Co. of Canada, Ontario’s Superior Court stated that unions are under an obligation to work with the employer to accommodate the affected employees. A collective bargaining agreement cannot be used as an excuse, by the employer or union, to avoid the duty to make reasonable efforts to accommodate. It is irrelevant that the employer did not intend to discriminate.

Last words

Adopting workplace policies governing accommodations, break times, leave days and work schedules should help employers accommodate religious beliefs. Under these policies, employees requiring accommodation would know the law, the procedure to request an accommodation based on religious beliefs, observances and practices, and how to write out their request, identify the belief that needs to be accommodated and the accommodation they require.

Human Resources PolicyPro has a sample statement of policy and procedure that will help employers and employees understand their rights and obligations under the law.

Yosie Saint-Cyr
First Reference Human Resources and Compliance Managing Editor