Accommodation required regarding religion – but what is undue hardship?

The Ontario Human Rights Code prohibits discrimination in employment on the basis of, among other things, religion.  Employers are required to accommodate people with respect to their religion unless that accommodation is an undue hardship.

What is and is not an undue hardship is often difficult to determine.

A man we will call Joseph applied for a job as a security guard. The company was hiring guards for its condominium clients in Mississauga. Joseph made his application, cleared the criminal check and passed the entry test. He was scheduled for two days of training with an examination at the end of it.

The second day of training was a Friday and at around noon Joseph approached the trainer to tell him that he would need an hour off that afternoon to go to his mosque and pray.

The trainer was concerned that Joseph wouldn’t be able to write the exam late in the afternoon. Joseph said that he could write it that evening just by studying the manual. The trainer said that if that didn’t work out there was more training scheduled for Tuesday which he could attend but that he had to clear everything with human resources.

Joseph approached the human resources manager and explained that he would need to an hour off that afternoon to attend prayers. The manager asked him if he would need time off every Friday afternoon and Joseph said he would. Joseph was walking out the front door within five minutes without a job.

Joseph filed a complaint under the Ontario Human Rights Code.

The company defended the claim based on Joseph’s dishonesty in not revealing this need for accommodation when he first applied and on the basis that accommodating Joseph would be an undue hardship.

The company argued that by not being up front about his need for accommodation, Joseph had displayed deceitfulness and dishonesty which was fundamentally at odds with the job of a security guard.

Joseph explained that in previous employment he had always had his Friday afternoon prayers accommodated by swapping shifts or not being scheduled so he didn’t think it was a big issue. Ultimately he agreed that he should have been more up front about the need for accommodation. The adjudicator who decided the case, however, did not agree with Joseph. Employees do not have an obligation to disclose, before they are even hired, any accommodation needs flowing from the Ontario Human Rights Code. They have a right to be accommodated to the point of undue hardship and it’s not something that you need to discuss up front.

I routinely advise clients not to disclose a disability at the application stage. It’s simply too easy for an employer to find an excuse other than the disability to not hire them and nothing can ever be proven.

Joseph’s employer argued that since its collective agreement with security guards guaranteed all of them full time employment, there would be problems with the union if they routinely gave Joseph time off. They did not, however, even bother to provide the adjudicator with a copy of the collective agreement to support their point. They also argued that they would incur extra costs calling somebody else in to fill in for Joseph and potential overtime. They didn’t actually provide any numbers. The adjudicator thought that since it was a large company any financial costs would not significantly affect the company’s financial position.

The company suggested that being required to give time off to Joseph would adversely affect its scheduling practices but didn’t really give any specific examples.

The company noted that the condominium clients like to see the same people every day and sending in somebody else would upset their clients. That argument was dead in the water before it was even floated. It’s like arguing that you should be allowed to deny employment to people of colour since your customers prefer to deal with white people.  If that argument worked, there might as well not be a human rights code.

Where the company really fell down was in properly investigating how much accommodation would be required.

Knowing that Joseph needed to get to the mosque every Friday afternoon, they could have placed him as close as possible to a mosque. Given that you have to give employees a half hour off every five hours in any case, how much grief could have been involved in changing that half an hour to an hour? If he worked near a mosque, all that would happen is that on Fridays he would take an early or late lunch, depending on his shift, and it would be a half an hour longer than normal.

If it evolved that Joseph could not be posted near a mosque and the actual calculations of the cost of covering him during his absences or not scheduling him during those times resulted in significant costs, they could then have given Joseph a choice to make.

Clearly, in the five minutes between the moment Joseph disclosed to the human resources manager that he needed some time off on Friday afternoons and the time he left the building, there was not enough time for the company to give consideration of any of these possibilities. It simply wasn’t interested. Ultimately, Joseph was awarded $5,000.00 in general damages for injury to his dignity, feelings and self respect in violation of the Code, another $2,500.00 for lost wages and the company was ordered to put all of its managers through training on human rights issues.

The lesson of the day for employers is this. When confronted with situations that even remotely resemble Joseph’s, stop, think, do nothing and call an employment lawyer.

Yes, I know, that last bit is self serving, but it doesn’t make the advice any less worthy.