MY RIGHTS AT WORK RELIGIOUS ACCOMMODATION IN THE WORKPLACE
Second Canadian Edition
“That a human can have nothing but what they strive for; That the fruit of their striving will soon come in sight: Then will they be rewarded with a reward complete.� Quran, An-Najm, The Star, Chapter 53, verse 39-41
TABLE OF CONTENTS INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
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WHAT ARE MY RIGHTS TO ACCOMMODATION IN THE WORKPLACE? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
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WHAT ARE MY EMPLOYER’S OBLIGATIONS?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
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HOW CAN I MAKE A REQUEST FOR ACCOMMODATION? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
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WHAT CAN I DO IF I FEEL MY RIGHTS HAVE BEEN VIOLATED? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
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ADDITIONAL RESOURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 NCCM CONTACT INFORMATION . . . . . . . . . . . . . . . . . . . . . . . . 24
i. INTRODUCTION As our Canadian society has diversified, Muslims and other faith communities sometimes find that their religious practices and beliefs create special needs at work. For example, you might need special breaks to pray, time off to celebrate Eid or another religious holiday, some flexibility in your scheduling to perform prayers and/or attend jumu’ah, or special modifications to your dress. In these cases, you may need your employer’s help to make some alternate arrangements. In law, these are called “accommodations.” What are your rights to religious accommodation in the workplace? How can you ask your employer to accommodate your religious needs? What are your employer’s obligations towards you? What options do you have if you feel your employer is ignoring these needs or mistreating you because of them? What if you are fired or have to leave work for reasons related to your religion? This pamphlet will help you understand the answers to these questions. It is divided into five parts: 01 WHAT ARE MY RIGHTS TO ACCOMMODATION IN THE WORKPLACE? 02 WHAT ARE MY EMPLOYER’S OBLIGATIONS? 03 HOW CAN I MAKE A REQUEST FOR ACCOMMODATION? 04 WHAT CAN I DO IF I FEEL MY RIGHTS HAVE BEEN VIOLATED? 05 ADDITIONAL RESOURCES 03
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WHAT ARE MY RIGHTS TO RELIGIOUS ACCOMMODATION IN THE WORKPLACE?
In Canada, each province has its own human rights laws. With minor exceptions, they contain similar protections. There is also a federal human rights act that covers individuals working or dealing with federally related sectors. To simplify this pamphlet, we will use the Ontario Human Rights Code (the “OHRC�) as our provincial model, keeping in mind that the information will be relevant regardless of where you live. YOUR RIGHTS UNDER THE ONTARIO HUMAN RIGHTS CODE The OHRC protects against religious discrimination in the employment context. It covers everyone working in Ontario, whether full time or part-time, unionized or not, contract or permanent, paid or volunteering. You also have the right to be protected from discrimination at every stage of your employment. This includes the hiring process, promotions, job evaluations, discipline, job assignments, firing etc. Discrimination can take many forms. For example, there may be rules at your workplace that apply to everyone, but that disadvantage you because of your religion. Being harassed for reasons relating to your religion or punished for asserting your rights is also discrimination. This pamphlet does not cover all religious discrimination in the workplace. The subject of this pamphlet is your right to
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reasonable accommodation when your religious beliefs conflict with a rule or requirement at work. If you have a specific question regarding discrimination you or someone you know may have experienced, please contact us. Our contact details as well as those of various provincial human rights tribunals are listed at the end of this guide. In general, accommodation scenarios arise from indirect (also called “constructive�) discrimination. Indirect discrimination is when an employer has a particular rule or qualification at work that does not on its face appear to discriminate, but actually ends up excluding or putting particular people at a disadvantage because of their religion or other grounds protected by your provincial human rights code. The law tries to level the playing field by requiring employers to treat persons in these circumstances differently (to accommodate them). In general, it does not matter whether your employer intended to discriminate, what matters is whether particular actions had a discriminating effect on you. EXAMPLE: INDIRECT DISCRIMINATION
To understand how indirect discrimination works, let us take the example of a restaurant in which the uniform for female wait-staff includes a mid-length skirt. On the surface, it appears that this rule applies to everyone equally without discrimination, because it does not mention Muslims or religious clothing directly. However, a Muslim employee looking to observe traditional Islamic dress conventions would find her religion conflicting with this rule and could lose the opportunity to work in that restaurant for reasons that do not relate to her ability to do the job. She has the right to request her employer allow her to make certain modifications to her uniform so that she can observe her religious dress code and continue to work in the restaurant. 05
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WHAT ARE MY EMPLOYER’S OBLIGATIONS WHEN I NEED ACCOMMODATION?
As noted in the last section, the OHRC and other provincial human rights codes create a duty on employers to take steps to accommodate the genuine religious beliefs of their employees. But how far does your employer need to go to meet this duty? If you ask your employer for religious accommodation, they are legally required to help within reason, even if it creates some difficulty for them, unless it would substantially interfere with the operation of the business. This substantial interference is called “undue hardship.” What is considered “undue hardship” depends on the factors of each situation and is determined on a case-by-case basis. To evaluate how the necessary accommodation would affect the business, the law considers if there would be significant costs, or if there would be health and safety risks to you or other employees or members of the public. The nature of the business, the size of the organization, and its financial resources are also relevant to what is considered “undue hardship” in any given case. The obligation to create to create new administrative guidelines, policies or scheduling plan would not usually be considered an undue hardship.
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EXAMPLE: DEGREES OF HARDSHIP To understand these concepts, let us imagine two scenarios.
In the first, a Muslim employee works in a large supermarket and is transferred to the meat department, where she must handle and sell pork products. She can ask to be moved to another department, and her employer will most likely be able to do so with minimal hardship. It would be very hard for her employer to justify not granting her request. Next, consider a similar scenario in a small convenience store. A Muslim worker is interested in working as a shop keeper, but would be the only employee in the store most of the time. This means he would have to tend to all customer needs, including selling items he feels conflict with his beliefs, like lottery tickets, cigarettes, and indecent magazines. In this case, how could his employer accommodate him? Removing these items from the store would result in a significant revenue drop. Hiring a second employee to work along with him and handle these tasks would double salary costs and make his presence unnecessary. In the second case, the employer would likely be able to show that accommodating the worker’s religious beliefs would create undue hardship because he would not be able to do the job he was hired for without serious costs and interference with the business. Where a requested accommodation is not provided by the employer, it is his or her responsibility to show that the particular rule or requirement is necessary for the job and that an accommodation would result in undue hardship. In addition,
the rule or requirement must have been adopted in good faith, meaning it was not created specifically to exclude an individual or group. If we return to the example of indirect discrimination in Part I (Muslim woman working as a waitress), it would be unlikely that the employer could justify denying her an accommodation i.e. a modified uniform. Although the rule may have been made in good faith and the uniformity of appearance of waitresses might make the business look more professional, wearing hijab and/or a longer skirt or pants would not cost her employer very much, nor affect her ability to serve customers. In addition to protecting you from indirect discrimination by requiring your employer to reasonably accommodate you, the OHRC also prohibits discrimination that results from you trying to assert your rights. That is, you cannot be harassed or punished because you asked for accommodation or made a complaint. It also protects you if, after you ask for accommodation, your work environment becomes unbearable or you are fired unfairly. Moreover, the OHRC protects your right to be treated respectfully during the process of seeking accommodation. Your employer should maintain privacy, confidentiality, and dignity at all times.
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03
HOW SHOULD I ASK MY EMPLOYER TO ACCOMMODATE MY RELIGIOUS NEEDS?
When employees feel comfortable and respected at work, it benefits the whole organization. A happy employee, generally speaking, is a productive employee. You should always do your best to promote a positive and respectful relationship with your employer. Based on the nature of your work place, you may wish to schedule a time to meet with your supervisor in person or send an e-mail. Here are some tips that can help you make an effective accommodation request: • When making a request, express your needs clearly and explain why you need what you are asking for. .................................................................. • Give your employer a reasonable time to consider your request and reply. Do not, for example, wait until the day before your religious holiday to request time off. .................................................................. • Be prepared to answer any clarification questions from your employer, including ones that ask for more detail about your religious beliefs.
For example, you might need to explain that Friday prayer is a required congressional prayer in Islam like Sunday services for some Christians or the Saturday Sabbath for observant Jews. You should be able to explain why you need to go for
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hajj or require a short break at sunset time to break your fast in Ramadan. .................................................................. • Try to be flexible and realistic in what you are asking for: make it as easy as possible for your employer to help you, and cooperate with any experts or staff they introduce into the process. .................................................................. • Be part of the solution; offer suggestions and consider those of your employer. The accommodation process is a multiparty process. Do not rely on your employer to come up with all the answers. .................................................................. • Reassure your employer of your commitment to meet work standards despite the accommodation. .................................................................. • If you speak to your employer in person, we recommend making notes for yourself about what was said and to send a follow up e-mail with the information. This will ensure you understood the discussion and will create a written record. .................................................................. • Finally, if after considering your proposal your employer refuses to accommodate you, try not to take the decision negatively. Ask them for more details and try to address their concerns before considering any other options. .................................................................. • Always be honest and forthright.
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WHAT CAN I DO IF I BELIEVE MY RIGHTS TO ACCOMMODATION HAVE BEEN VIOLATED?
If you feel your rights have been violated, it is important to speak to a lawyer who can help you understand if your case has merit and determine the best course of action. If you are in a union, your union representative can also be a resource and should be your first point of reference. NCCM can also help you mediate an accommodation issue with your employer or suggest a human rights lawyer to assist you. You can reach NCCM at: NCCM – National Council of Canadian Muslims P.O. Box 13219, Ottawa, ON, K2K 1X4 info@nccm.ca | www.nccm.ca Tel: +1-866-524-0004 / +1-613-254-9704 Fax: +1-613-254-9810 GOING TO A HUMAN RIGHTS COMMISSION OR TRIBUNAL This section provides only a simple overview of the issue as an introduction. Where you can pursue your rights will vary from province to province as each has its own Human Rights Commission or Tribunal. again, for simplicity we will use Ontario as the model in this section. In Part V, we provide resources for each province.
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In Ontario, discrimination cases are heard at the Ontario Human Rights Tribunal (“OHRT”). The OHRT is what is called an “administrative tribunal.” These tribunals act like courts, but they are specialized for particular kinds of legal problems and are less formal. Usually, administrative tribunals decide cases faster and at lower cost than in the court system. In your application, you must first prove that: (1) because of your religion, you required an accommodation; (2) you informed your employer of the need for the accommodation in a reasonable manner; and (3) you were not accommodated. After that, the burden shifts to your employer to show why the accommodation would have created undue hardship. You will have to explain the facts from your point of view and provide any evidence you have. This is where having a written record can also be very helpful. The Tribunal will request the same from your employer. If, in the course of pursuing your complaint, your employer takes any kind of action to punish you, you can make a second claim. After you make your application, the OHRT will first suggest that both sides meet with a mediator to come to a solution without the case going to a hearing. If no agreement is reached, a hearing can proceed in which each side [or their lawyer(s)] presents their evidence. Be aware that you can make a complaint to the OHRT even if you are still at your job. In addition, the Ontario Human Rights Code gives the Tribunal broad powers in the remedies they order. An OHRT decision can compensate you in money for lost wages or
for injury to your dignity, feelings, or self-respect. If the OHRT finds you have been wrongly terminated and you want your job back, it can order your return to work. It can also make any order it wants to promote compliance with the OHRC’s values; for example, asking your employer to change their policies or implement awareness training. Please keep in mind that claims must be made within one year of experiencing the discrimination.
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ADDITIONAL RESOURCES
This section provides resources and information organized by jurisdiction. CANADA – FEDERALLY REGULATED INDUSTRIES Canadian Human Rights Commission: www.chrc-ccdp.ca Toll free: 1-888-214-1090 Your Guide to Understanding the Canadian Human Rights Act: www.chrc-ccdp.ca/sites/default/files/chra_guide_lcdp-eng.pdf
........................................................... ONTARIO Ontario Human Rights Commission: www.hrlsc.on.ca Toronto phone: (416) 326-9511 Toll free: 1-800-387-9080 The Ontario Human Rights Commission’s “Policy on creed and the accommodation of religious observances,” available at: www.ohrc.on.ca/sites/default/files/attachments/Policy_on_creed_and_ the_accommodation_of_religious_observances.pdf The Ontario Human Rights Tribunal website is an excellent source of basic information has an excellent FAQ section: www.hrto.ca/hrto/index.php?q=en The Ontario Human Rights Legal Support Centre (OHRLSC) can help you evaluate your case and may be able to represent you if you qualify. Please visit their website at www.hrlsc.on.ca, or call them at: 416-326-9511 or toll-free at 1-800-387-9080.
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BRITISH COLUMBIA British Columbia Human Rights Tribunal: www.bchrt.bc.ca Vancouver: (604) 775-2000 Toll free: 1-888-440-8844 The Guide to the BC Human Rights Code and Tribunal includes background information and contact information for legal aid resources: www.bchrt.bc.ca/guides_and_information_sheets/guides/Guide1_2005.pdf
........................................................... QUEBEC Québec Commission des droits de la personne et des droits de la jeunesse: www.cdpdj.qc.ca Montréal phone: (514) 873-5146 Toll free: 1-800-361-6477 Québec phone: (418) 643-4826 Toll free: 1-800-463-5621 Reasonable accommodation information page: www.cdpdj.qc.ca/en/droits-de-la-personne/responsabilitesemployeurs/Pages/accommodement.aspx
........................................................... NOVA SCOTIA Nova Scotia Human Rights Commission: www.gov.ns.ca/humanrights Halifax phone: (902) 424-4111 Toll free: 1-877-269-7699 E-mail at hrcinquiries@gov.ns.ca. Information on Reasonable Accommodation: www.novascotia.ca/psc/pdf/employeeCentre/diverseWorkforce/ quickTips/accommodation.pdf
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ALBERTA Alberta Human Rights and Citizenship Commission: www.albertahumanrights.ab.ca Edmonton phone: (780) 427-7661 Calgary phone: (403) 297-6571 Toll free: 310-0000 (in Alberta) Information on the duty to accommodate: www.albertahumanrights.ab.ca/publications/bulletins_sheets_booklets/ sheets/hr_and_employment/duty_to_accommodate.asp
........................................................... MANITOBA Manitoba Human Rights Commission: www.manitobahumanrights.ca Winnipeg phone: (204) 945-3007 Toll free: 1-888-884-8681 TTY: 1-888-897-2811 Reasonable Accommodation Guidelines: www.manitobahumanrights.ca/publications/guidelines/reasonable_ accommodation.html FAQ: www.manitobahumanrights.ca/faq.html
........................................................... NEW BRUNSWICK New Brunswick Human Rights Commission: gnb.ca/hrc-cdp Phone: (506) 453-2301 Toll free: 1-888-417-2233 Guide to accommodation at work: www.gnb.ca/hrc-cdp/e/guide-accommodation-at-work-2012.pdf
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NEWFOUNDLAND AND LABRADOR Newfoundland and Labrador Human Rights Commission: www.justice.gov.nl.ca/hrc/index.html Phone: (709) 729-2709 Toll free: 1-800-563-5808 Employer’s Guide to reasonable accommodation: www.justice.gov.nl.ca/hrc/publications/employer_guide.pdf
........................................................... PRINCE EDWARD ISLAND Prince Edward Island Human Rights Commission: www.gov.pe.ca/humanrights Phone: (902) 368-4180 Toll free: 1-800-237-5031 Guide to workplace rights under the PEI Human Rights Act: www.gov.pe.ca/photos/original/hrc_guide_eng.pdf
........................................................... SASKATCHEWAN Saskatchewan Human Rights Commission: www.saskatchewanhumanrights.ca Regina phone: (306) 787-2530 Toll free: 1-800-667-8577 Saskatoon phone: (306) 933-5952 Toll free: 1-800-667-9249 Information on your human rights during employment: www.saskatchewanhumanrights.ca/learn/employers-employees Guide to accommodation and Bona Fide Occupational Requirements: http://saskatchewanhumanrights.ca/+pub/documents/policies_ guidelines/Bona-Fide-Occupational-Requirement.pdf
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NORTHWEST TERRITORIES Northwest Territories Human Rights Commission: nwthumanrights.ca Toll Free: 1-888-669-5575 Yellowknife: 867-669-5575 The Duty to Accommodate – A Guide for Employers: nwthumanrights.ca/ wp-content/uploads/2010/03/Duty-to-Accommodate-Complete-Guide.pdf
........................................................... YUKON Yukon Human Rights Commission: www.yhrc.yk.ca/ Phone: (867) 667-6226 Toll free: 1-800-661-0535 E-MAIL: humanrights@yhrc.yk.ca The Duty to Accommodate – Impact on Employers and Service Providers: www.yhrc.yk.ca/pdfs/Duty%20to%20Accommodate.pdf.
........................................................... NUNAVUT Nunavut Human Rights Tribunal: www.nhrt.ca/english/links/ 1-866.413.6478 - Toll-free across Canada 1-888-220-1011-Toll free Fax E-mail: nunavuthumanrights@gov.nu.ca General information on human rights in Nunavut: www.nhrt.ca/english/general_information Legal resources: Nunavut Law Line: 1-866-606-9400 (toll-free); or Keewatin Legal Service Centre: 867-645-2536 Kitikmeot Law Centre :867-983-2906 MaliiganikTukisiiniakvik: 867-979-5377
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CONTACT INFORMATION National Council of Canadian Muslims (NCCM) P.O.Box 13219, Ottawa, ON Canada, K2K 1X4 Tel: 1.866.524.0004 Local: (613) 254.9704 Fax: (613) 254.9810 info@nccm.ca www.nccm.ca
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The NCCM is an independent nonprofit, non-partisan, grassroots advocacy organization. It is a leading voice for Muslim civic engagement and the promotion of human rights.
WWW.NCCM.CA 1.866.524.0004 info@nccm.ca P.O. Box 13219 Ottawa ON K2K 1X4