Queen's Human Rights Bulletin
Volume II, Issue II; January 2006
The Central Dairy Pool Case (1990)
How do you determine if a workplace rule that discriminates against religious minorities constitutes a bona fide occupational requirement?
In Central Alberta Dairy Pool (1990) an employee of the Dairy Pool, Jim Christie asked his supervisor for a day off without pay so that he, as a member of the World Wide Church of God, could fulfill his religious requirement to observe Easter Monday. The supervisor denied him this request, explaining that all employees were required to work on Mondays in order to process the surplus of milk collected over the weekend. If the work was not done Monday, he maintained, the milk would spoil and the company would lose money. When Christie failed to show up for work on Easter Monday, 1983, he was dismissed. The case went all the way to the Supreme Court of Canada, who repudiated, in part, its finding in Bhinder (1985). [Central Alberta Dairy Pool v. Alberta (Human Rights Comm.) (1990), 12 CHRR D/417 (S.C.C.)]
Did the requirement to work on Monday discriminate adversely against Christie?
Is this requirement considered to be bona fide, absolving the employer from its duty to accommodate?
Are there a set of criteria with which an employer can measure what amounts to undue hardship?
In this case, would the accommodation of Christie amount to undue hardship?
Would the outcome be different if the rule had discriminated directly against Christie?
Yes, according to the majority
The Supreme Court found that the rule had been made in good faith and that it was reasonably necessary for the smooth operation of business. Although it was neutral on its face, the requirement to work on Monday was adversely discriminatory against Jim Christie, who could not work on Monday for bona fide religious reasons.
Five years earlier, in Bhinder, the Supreme Court had ruled that workplace practices that discriminate against individuals are not considered to be discriminatory if they are shown to be bona fide occupational requirements. In this case, however, it repudiated, in part, this ruling when it ruled that workplace practices that discriminate adversely against individuals are considered to be discriminatory if the employer does not accommodate the individuals to the point of undue hardship.
According to Wilson J., (p. 521) the following factors could be relevant in appraisal of what amount of hardship was undue: "financial cost, disruption of a collective agreement, problems of morale of other employees, interchangeability of work force and facilities. The size of the employers operation may influence the assessment of whether a given financial cost is undue or the ease with which the work force and facilities can be adapted to the circumstances. Where safety is at issue both the magnitude of the risk and the identity of those who bear it are relevant considerations". She added when considering the impact on other employees, minor inconvenience is the "price to pay for religious freedom" and does not constitute undue hardship.
In this case, the employer did not show that accommodating Mr. Christie would impose undue hardship in any of the above areas.
According to the majority, rules that discriminate directly against individuals are not considered to be discriminatory if they are proven to be bona fide. In such a case, the employer would have no duty to accommodate discriminated individuals. Accordingly to the minority, discrimination is discrimination, whether it is adverse effect or direct. The employer should therefore have a duty to accommodate, to the point of undue hardship, any individual against whom a rule discriminates, be it directly or indirectly. In Meiorin (1999), the Supreme Court adopted the reasoning set forth by the minority in Central Albert Dairy Pool (2000). The resulting three-part Meiorin test has become the mechanism by which all courts, tribunals and arbitrators measure whether or not a discriminatory workplace practice constitutes bona fide occupational requirement. The outcome for Christie would likely have been different under the Meiorin test.
Queen's Human Rights Bulletin - January 2006 - Queen's Human Rights Office