December 16, 2002by Israel Foulon LLP
How far does an employer have to go to accommodate religious beliefs
It appears courts may be adopting a more practical and business-like approach to accommodating employees to the point of ”undue hardship” under human rights legislation. In a decision released in September by the Ontario Divisional Court, Ontario (Human Rights Commission) v. Roosma, the religious beliefs of two employees were found to be too difficult for their employer to make allowances for.
Roosma and Weiler were employees of the Ford Motor Company of Canada at its Oakville, Ont. plant. They became adherents of the Worldwide Church of God in 1984. The church observed its Sabbath from Friday sunset to Saturday sunset.
Both employees worked shifts that would ordinarily require them to work two Friday nights out of four. They refused to do so because of their religious beliefs. Roosma and Weiler attempted to arrange alternative work assignments, training people (on their own time) to work their shifts, switching shifts with other workers, or having a pool of trained substitutes to cover their position on Friday evenings. These attempted ad hoc arrangements continued for approximately two years.
Ultimately, these attempts at alternate arrangements failed. When Roosma and Weiler failed to arrive for scheduled Friday shifts, both employees were subject to discipline due to unauthorized absenteeism. They were ultimately terminated.
The union refused to support the employees, because it determined that all of the possible solutions unduly interfered with the seniority principle in the workplace or the legitimate management rights of Ford.
Roosma and Weiler took their case to the Ontario Human Rights Commission which sent the case before a tribunal. The tribunal heard extensive evidence as to whether it would be undue hardship on Ford to accommodate these two employees.
Representing the employees, the commission emphasized Ford was a profitable global corporation with millions of dollars in sales. The commission had engaged a cost accountant to analyse the cost impact of accommodating the two employees. The accountant concluded the financial impact on Ford to accommodate 20 shifts was “negligible,” ranging from $1,132 to $12,710 depending on the accounting method used.
Ford provided evidence of the practical difficulties of implementing the alternate work arrangements requested by the two employees.
After a 71-day hearing, the tribunal decided it would constitute undue hardship on Ford to accommodate the religious absences of these two employees. In arriving at this decision, the tribunal reviewed a number of factors, including:
- although Ford had been profitable between 1984 to 1988 it faced fierce competition;
- Ford’s Oakville plant already had to cope with high levels of absenteeism on Friday evenings for reasons unrelated to religious observances;
- the alternative work arrangements proposed by the employees would disrupt seniority arrangements under the collective bargaining agreement;
- co-workers were reluctant to work the Friday evening shift; and
- there were additional hidden costs due to increased fatigue and error when employees were required to work double-shifts to cover for Roosma and Weiler.
The tribunal’s decision was appealed. The Divisional Court held it would only overturn the tribunal’s decision if it were unreasonable. In a 2-1 majority, the court concluded there was no palpable or overriding error in the tribunal’s reasons.
The decision reflects a much more flexible and business-like approach to the issue of accommodation to the point of undue hardship.
The majority of the court also found the union had met its obligations to assist the complainants by maintaining regular contact with them, as well as by maintaining an ongoing dialogue with Ford to seek some form of accommodation. All three judges strongly supported the importance of seniority rights in a unionized workplace.
It is significant that the Divisional Court did not refer in the course of its reasons to the Ontario Human Rights Commission’s Policy and Guidelines on Disability and the Duty to Accommodate. While not strictly applicable, the Guidelines provide a very stringent definition of undue hardship. In upholding the tribunal’s decision, the majority implicitly rejected the commission’s definition of undue hardship and accepted the tribunal’s more pragmatic approach.
The issue of accommodation will no doubt continue to be litigated. There was a strong dissenting judgment written by Justice Lax. The commission has filed a motion for leave to appeal with the Ontario Court of Appeal.
For more information see Ontario (Human Rights Commission) v. Roosma,  O.J. 3688, released Sept. 19, 2002.
Protecting your firm
In concluding it would constitute undue hardship on Ford to accommodate two employees’ religious beliefs the Ontario Divisional Court examined a number of factors employers should keep in mind when determining what type of accommodation is required in a particular circumstance. The following factors were considered relevant:
- What is the general purpose of the employer’s shift and seniority structure? Is it aimed at a rational and legitimate business objective – namely to achieve a quality product?
- Did the employer engage in lengthy deliberations on how it might accommodate the employees and did the employer have valid reasons for not being able to accommodate?
- How is “undue hardship” defined? The court in the Roosma case took into account the financial cost, the interchangeability of the operation, the importance of having the regular operator on each job, the impact of the collective agreement, safety considerations and the substantive effect of accommodation on other workers.
- What effect will accommodation have on existing seniority rights? In the Roosma case this was an important consideration. The seniority level was unusually high in this particular workplace, and breaches of seniority were considered very serious by other workers.
What the courts are saying…
- The Supreme Court of Canada considered a British Columbia school board’s duty to accommodate a custodian who, as a Seventh-day Adventist, was unable to work a shift that commenced on Friday afternoon and concluded late Friday evening. The Central Okanagan School District attempted to accommodate by placing the employee on a Sunday to Thursday shift.
The union objected because this proposal violated the collective agreement. The employee was ultimately terminated when no satisfactory accommodation could be found. The court held that both the board and the union breached their duty to accommodate the employee. The court noted the duty to accommodate requires reasonable measures short of undue hardship. More than mere negligible effort is required.
The court noted the concern for the impact on fellow employees was a factor to be considered, however, there must be actual interference with the rights of other employees, which is not trivial but substantial, that will result from the accommodating measures. Both the employer and the union were required to deal with minor inconvenience that was caused by the accommodation efforts.
Renaud v. Central Okanagan School Dist. No. 23 (1992), 16 C.H.R.R. D/425.
- In another case before the Supreme Court of Canada, the complainant was employed in the production operations of an Alberta milk processing plant. The complainant became a member of the World Wide Church of God which recognizes a Saturday Sabbath and numerous other holy days throughout the year. The complainant’s religion dictated he not work on these holy days.
The employer accommodated the employee’s request not to work Saturdays but required the employee to work on Easter Monday as the employer’s dairy plant was particularly busy on Mondays. The complainant refused to report to work and was dismissed. The court held the employer failed in its obligation to accommodate the employee to the point of undue hardship. In so doing, the court noted an employer is entitled to consider whether financial cost, disruption of a collective agreement, problems with employee morale or the interchangeability of workforce and facilities would create significant difficulties or obstacles to properly accommodating an employee’s religious observances.
Central Alberta Dairy Pool v. Alberta (Human Rights Commission) (1990), 72 D.L.R. (4th) 417.
Peter Israel and Chris Foulon are partners in the Toronto law firm of Israel Foulon LLP – Employment and Labour Lawyers. They can be reached at 416-640-1550 or firstname.lastname@example.org. or email@example.com. The authors would like to thank Neena Gupta for her assistance with this article. A version of this article originally appeared in the Carswell publication, Canadian HR Reporter