Canadian society is becoming increasingly diverse. In many cases, an individual’s religious observances will primarily occur outside of the workplace. However, there will be some cases where an employee’s religious beliefs or practices conflict with a workplace requirement or practice.
First, an employer must understand its legal obligations. Human rights legislation across Canada protects individuals from discrimination based on certain prohibited grounds, including “religion” and/or “creed.” These terms generally refer to a religion or a faith and include the practices, beliefs and observances of that religion or faith. Courts and tribunals have ruled that this protection also extends to personal religious beliefs, practices or observances, even if they are not essential elements of the religion or creed, provided they are sincerely held. Additionally, the terms “religion” and “creed” have been broadly interpreted so as to include the spiritual faiths or practices of aboriginal cultures, as well as those of unconventional, minority religions.
An employer has a duty to accommodate an employee’s religious observances to the point of undue hardship. Accommodation involves an individual analysis and the most appropriate accommodation must be determined for each employee on an individual basis. Undue hardship is an onerous standard. In deciding cases of undue hardship, courts have considered factors such as safety, cost, the size of the employer’s operation, the interchangeability of the workforce and facilities and the disruption of a collective agreement. In several provinces, determination of undue hardship may involve reference to definitions under statute. In general though, the two factors that receive the most attention in the caselaw are cost and safety.