Recent events at York University have brought the complex and
evolving discussion about the duty to accommodate religious beliefs
into the national spotlight. The situation at York University
involved a male student who claimed his religious beliefs prevented
him from engaging in face-to-face group work with female students.
The media attention that resulted in the disagreement between the
student's professor and York University over how to accommodate
the student's request shows just how difficult it can be for
public institutions and employers to address this issue.
Human rights legislation exists in each jurisdiction that
protects individuals from discrimination in employment.
Specifically, employers are prohibited from discriminating against
potential or current employees on certain grounds, including race,
national or ethnic origin, religion, age, sex, sexual orientation,
marital status, family status, and disability.
Implied in the prohibition against discrimination is a positive
duty on the part of the employer to accommodate their
employees' needs for reasons associated with recognized
discriminatory grounds, which is known more simply as the duty to
accommodate. This requires accommodation of an employee based on
the protected discriminatory ground to the point of undue hardship.
This standard is highly fact-specific in each employment
relationship. As evidenced by the York University incident,
accommodation of religious beliefs can be a controversial topic,
particularly as organizations respond to an increasingly diverse
workforce or student population.
Generally, employers will be able to accommodate religious
requests by providing days off work or short leaves of absence to
allow the employee to participate in religious observances or
holidays. However, other requests which may detrimentally impact
the operations of the employer's business, or bring competing
rights into play may be more difficult to implement. Failure to
properly accommodate an employee's religious beliefs could not
only lead to potential human rights complaints, but also negative
media coverage, as was the case with York University.
Employers should consider the following guiding principles when
determining how to accommodate their employees' religious
beliefs, particularly in light of the obligation to accommodate to
the point of undue hardship:
Health and Safety: Does complying with the
request endanger the health and safety of the requesting employee
or others in the workplace? Are there any measures the employer can
institute to mitigate those health and safety risks and accommodate
the employee's request without causing undue hardship to the
Cost: Is the cost of accommodating the
employee's request substantial? If not, it often will not rise
to the level of undue hardship.
Conflicting Rights: The duty to accommodate an
employee's religious beliefs must not result in discrimination
against another employee. Such conflicts will usually rise to the
point of undue hardship for the employer and will justify modifying
or refusing the employee's request.
A final consideration for employers is that the law does not
require accommodation to the complete satisfaction of the
requesting employee. Rather, the employer is obligated to find
reasonable accommodations for both the employee and the employer in
the context of the specific employment relationship.
Satisfying the duty to accommodate is highly fact specific
exercise in which both the employee and employer must participate.
Employers are well advised to contact legal counsel at the outset
of an employee request to accommodate religious beliefs or any
other request for accommodation, in order to mitigate any potential
for conflict, unwanted media attention or costly litigation.
The arbitrator's decision covered a number of issues including whether the termination was appropriate and whether the City had breached the grievor's human rights. The following, however, will focus on the privacy issue raised.
In my December 15, 2016 article, Federal Government's Cannabis Report: What does it mean for employers?, I noted the Report's1 suggestion that there was a lack of research to reliably determine when individuals are impaired by cannabis.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).