Volume II, Issue I

September 2005

 Queen's Human Rights Bulletin

 Religious Discrimination

The O'Malley Case

• Index • The Dhillen Case • The Pannu Case • The Nijjar Case • The O'Malley Case • The Roosma Case • The Moore Case • The Kurvits Case • The Schroen Case • The Caldwell Case • The Fancy Case • The Brockie Case • The Ross Case • The Trinity Case • Resources • Printer Friendly Version •

Facts             

In 1975, Theresa O'Malley starting working at a Sears store in Kingston. As a full-time salesperson, she was required to work two Saturdays out of three per month. When, in 1978, she became a member of the Seventh-day Adventist Church, the tenets of her new faith required her to observe the Sabbath. This meant that she could not work from sunset Friday to sunset Saturday.  When she spoke to her supervisor about the conflict of requirements, he informed her that if she could not work Saturday shifts, she could no longer work full-time at the store.  She accepted part-time work while applying for other full-time positions at Sears for which she did not qualify.  Eventually she filed a complaint of discrimination on the ground of religion, and asked to be compensated for lost wages from the date of her demotion to the date of her marriage, several years later. The case went through several judicial levels. A Board of Inquiry dismissed the complaint because the complainant had failed to prove that the respondent had not accommodated her reasonably.  This decision was supported by the Divisional Court, who pointed out that the Ontario Human Rights Code contained no "saving clause" obliging an employer to accommodate employees against whom they discriminated on the ground of religion.  A Court of Appeal rejected O'Malley's application because the act of discrimination was unintentional. Finally, the Supreme Court of Canada supported O'Malley and ordered Simpson-Sears to compensate O'Malley for lost wages. (O'Malley v. Simpson-Sears Ltd. (1985), 7 C.H.R.R. D/3102 (S.C.C.))

Questions

1. Was it up to the complainant to prove that the respondent had not reasonably accommodated her?

2. Did the absence of a "saving clause" discharge the respondent of its duty to accommodate ?

3. Did it matter that the discrimination was unintentional ?

4. Did Simpson-Sears establish that it had reasonably accommodated O'Malley ?

Rulings

1. No

2. No

3. No

4. No

Reasoning.

1. Justice McIntyre stated that once a case of prima facie adverse effect employment discrimination based on a religious ground was established, it was up to the respondent, not the complainant, to prove that reasonable accommodation steps had been taken.

2. He demonstrated that although there is no saving clause explicitly stating the duty of the employer to accommodate up to undue hardship, this principle was implicit in the preamble and general intention of the Ontario Human Rights Code. (There is now such a clause).

3. He insisted that although direct discrimination was different from adverse-affect discrimination, and that the remedies for each type of discrimination were distinct, this did not exempt the employer from its duty to accommodate employees who were adversely affected by neutral employment standards whether intentional or not.

4. Although regretful that the employer had failed to present evidence establishing the reasonableness of its accommodation, Justice McIntyre concluded that in the absence of contrary evidence, the appeal must succeed.

 Further information on Religious Leave: Policy on Creed and the Accommodation of Religious Observances, s.7.4