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Recently, my colleagues and I spoke about the challenges of religious accommodation in the workplace. While I would describe each of us as reasonably culturally-aware, my colleagues and I professed (innocent) ignorance surrounding the specific products and costs involved in accommodating certain religious requests, such as installing foot-washing stations to facilitate Wudu or providing a fitted sleeved to cover a kara. We mused that it would be helpful to have a “Human Rights Depot” for religious accommodation accoutrements. After some online research, I have not found a reliable Canadian source for these types of products. (Perhaps an aspiring entrepreneur will consider setting up such a depot?)
In addition to the question regarding one-stop shopping for accommodation-related products, we discussed several other oft-misunderstood concepts in religious accommodation. When it comes to this topic, there is no “one-size fits all” approach.
What is “religion”?
The Ontario Human Rights Code does not protect people on the basis of “religion” per se, but rather protects against discrimination on the basis of “creed”. While there is no definition of “creed” in the Code, in the 1996 Policy on Creed and the Accommodation of Religious Observances (amended in December 2009 with further amendments on the horizon), the Ontario Human Rights Commission (the “OHRC”) adopted the following definition:
Creed is interpreted to mean “religious creed” or “religion”. It is defined as a professed system and confession of faith, including both beliefs and observances or worship. A belief in a God or gods, or a single supreme being or deity is not a requisite.
Religion is broadly accepted by the OHRC to include, for example, non-deistic bodies of faith, such as the spiritual faiths/practices of aboriginal cultures, as well as bona fide newer religions (assessed on a case by case basis).
According to the OHRC’s Creed Case Law Review, there have been a number of different faiths that have been recognized by courts and tribunals as “creeds”, including: Christianity; Islam; Judaism; Sikhism; Falun Gong; and various Aboriginal spiritual practices. This is not an exhaustive list. Simply because a religion has not yet been recognized as a “creed” does not mean that it will not be recognized.
What kind of accommodation is required?
There is no “cookie cutter” approach to accommodating a creed-based request, but there are a number of different ways that an employer may accommodate an employee’s religious observances. For example:
- permitting time off of work to observe religious holidays and using lieu time or other scheduling changes to minimize or eliminate any loss of hours and wages;
- providing a space for religious rituals to be observed at work (including providing space for a prayer room or other areas to facilitate worship, such as an area with a washing station to permit Wudu); and
- allowing an employee to wear religious jewellery or clothing, even if it means that an employee’s uniform may have to be augmented to ensure that other workplace safety requirements are met.
An employer should consider all available options before making a decision about whether and how to provide accommodation. The blanket position that it’s “too expensive” or it would “not be fair to other employees” is not sufficient, and could lead to an adverse finding by the Human Rights Tribunal of Ontario (the “HRTO”).
RT tips for how employers should approach religious/creed-based accommodation requests
There are a few helpful principles to keep in mind when assessing a request for religious accommodation:
- Pinpoint the nature of the request Is the requested accommodation necessary for the employee to observe his or her creed or simply a “nice to have” accommodation? In the latter instance, there may not be an accommodation obligation.
- Don’t be afraid to ask the employee for details regarding the requested accommodation Employees may be the best source of information about how to accommodate their own requests. For example, it may be appropriate to ask the employee for the name of a minister or elder in the religious organization to provide details of the employee’s obligations as a member of that denomination, including the frequency and duration of the accommodation.
- Demonstrate the efforts made 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. It is important to document what options were considered and why the employer did or did not implement those options.
- Be flexible and open-minded While it may not be ideal to make an exception for any employee, whether because of religion or otherwise, it is crucial that an employer show that it was open to considering all options before making a determination about a faith-based request. Accommodating one request does not necessarily lead to a floodgate of similar or unjustified requests.
There is no foolproof how-to guide or one-stop depot for religious accommodation in the workplace, but employers who take a reasoned approach to assessing these requests can achieve workable solutions and avoid unfavourable scrutiny by the HRTO.