Human Rights and Equity Office

Human Rights and Equity Office
Human Rights and Equity Office

Meeting 4:  Religious Discrimination and Accommodation

In April 2010, the Human Rights Legislation Group met with community spiritual leaders who presented information on key faith dates.  Units are encouraged to contact the following persons individually should they have questions or concerns about religious-based issues.

Guest Speakers

Brian Yealland, University Chaplain

Rob Nagus, Director of Queen's Hillel

Bob Lovelace, Professor in Global Studies

Yasin Dwyer, University Imam

The group was also introduced to a number of legal issues regarding religious discrimination and accommodation in a University setting.

Religious Discrimination

Religious Dress: When does public safety override human rights?

In Dhillen (1999), a tribunal determined that a Sikh motorist wearing a turban should be allowed to take a test for a motorcycle license, because the potential risk incurred by not wearing a helmet affected only his own safety.

In Pannu (2000), however, a tribunal ruled that an employer had not discriminated against a Sikh recaust worker when it dismissed him for refusing to shave his beard because the potential risk incurred by having facial wear affected the safety of his co-workers.

In Nijjar (1999),  a tribunal ruled that a Sikh passenger wearing a kirpan should not be allowed a seat on an airplane because the potential for injury affected the safety of other passengers.

In Ali Tahmourpour (2008), the Canadian Human Rights Commission found a trainee had been wrongfully expelled from the training program on the basis of his religious beliefs and ethnic origin.

Holy Days: When can an employee get time off to celebrate holy days?

In O'Malley (1985), the Supreme Court ruled that an employer had failed to accommodate, to the point of undue hardship, a Seventh-day Adventist employee who lost her full-time status when she refused to work on her Sabbath.

In Roosma (1995), however, an Ontario Board of Inquiry ruled that an employer was not guilty of discrimination when it dismissed two employees adhering to the Worldwide Church of God for repeatedly missing work on certain holy days because accommodating them would have incurred undue hardship.

Special Interest Organizations: Under what circumstances may an employer fire an employee for religious non-conformity?

In Caldwell (1984), the Supreme Court of Canada ruled in favour of a Catholic High School who fired a teacher upon discovering that she was not Catholic.

Similarly, in Schroen (1999), a Board of Adjudication ruled in favour of a Mennonite college that dismissed an accounting clerk upon learning she was not Mennonite.

Provision of Services:  Do service providers have the right to discriminate, based on their religious beliefs, against groups protected by human rights law?

In Fancy (1993), a Board of Inquiry ruled that a School Division had discriminated against religious minorities when it allowed schools to give Bible readings in the mornings and to recite the Lord's prayer at school assemblies.

In Brockie (2000), an Ontario Board of Inquiry determined that a Born-again Christian had unjustly discriminated against a gay client when the former refused, on religious grounds, to provide the latter with printing services.

In Sonnenberg v Centre Universitaire St. Louis Maillet (1987), a Board of Inquiry found that a university was within its right to refuse to rent an auditorium to a Pentecostal minister who wanted to promote his church on campus; university premises are not services customarily provided to members of the general public and university policy allowed the centre to refuse campus space to persons who might bother or involve students

Is the employer responsible for acts of religious discrimination committed by one employee against another?

In Pizza Hut (1999) a B.C. human rights tribunal ruled that Pizza Hut was liable for the threatening and derogatory remarks made by a Bosnian Serb employee to a Bosnian Muslim employee.

In a related case,Pillai (2003), a B.C human rights tribunal ruled that Lafarge Canada was liable for the racial and religious slurs made about a South Asian employee.

Freedom of expression: When do constitutional/collective agreement rights override Human Rights?

In Ross(1996), the Supreme Court supported a board of Inquiry's ruling against a teacher who professed hatred against Jews, explaining that the elimination of discrimination overruled the individual's freedom of speech.

In Noble v York university (2004), an arbitrator ruled that the University had violated the Collective Agreement when it publicly denounced (as racist and anti-Semitic) the research of one of its tenure professors. It had not, however, defamed him.

In Trinity Western University (1998), the B.C. Court of Appeal (in a split decision) ruled that the B.C.College of Teachers did not have the right to deny entry to Trinity Western University, whose religiously-based policies were explicitly homophobic.

Is it acceptable to offer bursaries to students on the basis of their religion?

In University of Victoria v B.C Attorney General (2000), the BC Supreme Court ruled that it was not against public policy for the University to respect the testamentary wishes of a women who had left money for the establishment of two bursaries for Catholic students only. Even if the provision was based on creed, it constituted an innocuous breach of the code. The Court distinguished this case from the Re. Leonard case, where an educational trust was deemed to be contrary to public policy because of its overly sexist , racist and religious bias

What does a complainant need to demonstrate in order to have a reasonable prospect of success in a religious discrimination case?

In Hamedanian v Capilano University (2009), the BCHRT ruled that a systems analyst's complaint of religious discrimination in employment had no reasonable prospect of success: although she had demonstrated that she was Muslim and that she had faced adverse treatment (dismissal), she was unable to create a nexus between her creed and the adverse treatment. Her cases was dismissed In Hsieh v York University (2009), a student was unable to prove that she had been adversely treated by a professor and an administrator because of her religious-based attitudes against gay marriage and transgendered persons. Similarly, in Maughan v UBC(2009), a student was unable to demonstrate that she had been adversely treated by professors, fellow-students and administrators on the basis of her expression of religious beliefs in the classroom.

Religious Accommodation

Do personal beliefs trigger freedom of religion?

In Amselem (2004), the Supreme Court of Canada overturned a lower court's injunction prohibiting five Orthodox Jewish residents from building religious dwellings on their balconies.

In Akiyama (2002), a Human Rights Tribunal dismissed a complaint of religious discrimination filed by a mother whose children had been disqualified from a judo competition for refusing to bow.

What happens when occupational requirements conflict with religious requirements?

In Bhinder (1985), the Supreme Court found that a Railway company had not discriminated against a Sikh employee when it dismissed him for refusing to wear a safety helmet.

Five years later, in Central Alberta Dairy Pool (1990), the Supreme Court repudiated in part its decision in Bhinder, when it found that Central Alberta Dairy Pool had discriminated against an employee, a member of the World Wide Church of God, when it dismissed him for refusing to work on Easter Monday.

In contrast, in MacEachern v Saint Francis of Xavier, a Board of Inquiry ruled that it was not possible to provide reasonable accommodation to a stationary engineer, a member of the Worldwide Church of God, for reasons of safety and employee morale.

At what point does religious accommodation become undue hardship?

In Wilson (1981), an arbitrator found that a hospital should have accommodated a registered nurse, a Jehovah's Witness, who was unlawfully fired for refusing to hang blood in the intensive care unit.

In Jones (2001), a tribunal found that a pharmacy should have accommodated a Sikh employee, who was unlawfully dismissed for refusing to set out poinsettias at Christmas time.

What is the role of the union when an employee needs a religious accommodation?

In Renaud (1992) and Robert-Giffard,  the Supreme Court, and then a human rights tribunal, ruled that unions and employers are jointly responsible for accommodating employees who can not, for religious reasons, fulfill requirements from the collective agreement. Furthermore, they found that a threat of a union grievance does not constitute undue hardship.

Do newspapers and magazines have the right to expose protected groups to hatred or contempt in the name of religion, or on the basis of religion?

In Hellquist (2001), a Saskatchewan board of inquiry found that a newspaper had discriminated against gay men when it printed an advertisement for homophobic bumper stickers featuring quotes from the Bible.

InKane (2002), an Albertan Human Rights Panel ruled that a business magazine had discriminated against members of a religious group when it printed an article about a failed business deal which contained anti-Semitic jargon. It also found that the magazine had properly accommodated the offended party by allowing space for rebuttal.

Do websites have the right to expose a religious group to hatred or contempt?

In Zündel (2003), a Canadian Rights Commission found that Zündelsite exposed members of a religious group to hatred and contempt, and ordered the author, Zündel, to cease and desist from discriminating against Jews.

Similarly, in Kyburz (2003), a Canadian Rights Tribunal found that Kyburz, the author of an anti-Semitic web-site, had discriminated against members of a religious group (Jews) and also against an individual who had filed a human rights complaint about the site.

Does a University/College have to provide prayer space to Muslim Students?

In CRARR v ETS, the Quebec Human Rights Commission ruled that university had failed to fulfill its duty to accommodate Muslim Students who were required, by their faith, to pray several times a day.

To what extent must an employer accommodate an employee's religious-based conduct?

In Moore (1992), the B.C. Human Rights Council ruled in favour of a Roman Catholic employee who had been fired without being accommodated when she refused, on religious grounds, to grant a client medical coverage for an abortion.

Similarly, in Kurvits (1991), the Canadian Human Rights Tribunal ruled in favour of a Baptist employee whose union wrongfully denied him the right to transfer his union dues to a Baptist church that, for religious reasons, did not comply with the Income Tax Act.

What is an acceptable policy on religious accommodation?

In Markovic v Autocom (2008), the Human Rights Tribunal of Ontario ruled that a religious accommodation policy offering a menu of options for time off is appropriate; employees of different creeds are not entitled to two days off with pay.

In Noble v York University (2009), the Ontario Human Rights Commission ruled that York's long-standing practice of not holding classes on Jewish High Holidays was discriminatory to non-Jewish students.

Cases

MacEachern v Saint Francis of Xavier University

What happens when occupational requirements conflict with religious requirements? 

Facts

  • When a boiler room engineer at Saint Francis Xavier became a practicing member of the Wide World Church of God, he notified the university that he would not be able to work on the Sabbath (Friday night to Saturday night) as well as on eight other high holy days. 
  • Over the winter and spring months, the complainant was able to manage the Sabbath/Shift conflicts by swapping shifts with his four coworkers: three full-time operators and one relief operator. However, in the summer months, when people were taking their vacations, it became increasingly difficult to find accommodation.
  • He told HR that he would be willing to transfer to another position within the university, but was not willing to take a significant cut in salary (no more than 5% to 10%) nor was he willing to work as a janitor, a laundry worker, a housekeeper, or a serviceman. 
  • In August 1988, he failed to report to work even though he had not arrange accommodation. As a result, a coworker who had just finished a 24-hour shift, was forced to do another 24 hour shift. This coworker filed a grievance and tension grew amongst the operators. 
  •  Days after the incident, the University advertised for a relief stationary operator but received no applications. At a meeting held a few weeks after the incident, the stationary operators met with University Counsel and union representatives and the Personnel Officer to discuss an accommodation plan which included: a review of the shift schedule, a continued effort to such for a relief operator, and a continued effort to find alternative employment for MacEachern. The University refused to implement the Union’s idea of “penciling in” the existing relief officer to cover the Sabbath Shifts. On September 6th, the complainant was given a directive that he did not have the authority to “unilaterally change [his] shift schedule or refuse to report to work”. He was to cease swapping shifts and to go through the Senior Engineer, who was in charge of the schedule from then on. In the meantime, a draft schedule was sent out to the operators for their comments.  Feedback was negative; all operators opposed the irregularity of the new schedule and the fact that they would have to work more weekends and, in certain cases, fewer shifts (earning therefore less money) in order to accommodate MacEachern. Based on this feedback, the University decided not to impose the new schedule.
  • Over the fall semester, Mr. MacEachern continued to receive accommodation by swapping shifts with his coworkers. When, on November 25th, he failed to report to work for the second time (forcing another coworker to work a double shift, the University decided to suspend his employment. On Dec 5th, the Union counselled him to accept a deal whereby he would willingly resign if no solution had been reached by July 1, 1989. In this time period, no one applied for the position of relief operator and MacEachern rejected or was not qualified for the jobs that became available on campus. When he refused to resign on July 1, the University fired him. Months later, his former job was advertised by the University. He applied but did not receive an interview. MacEachern v St. Francis Xavier University (1994), 24 CHRR D/226 (NS Bd. Inq)

Questions

  1. Were MacEachern’s requests for accommodation bona fide?

  2. Did the University and the Union respondents provide reasonable accommodation of Mr. MacEachern’s religious beliefs to the point of undue hardship?

  3. Did the University and the Union respondents provide reasonable accommodation of Mr. MacEachern’s religious beliefs to the point of undue hardship?

  4. Was it impossible to accommodate MacEachern to the point of undue hardship?

Rulings

  1. Yes

  2. Yes

  3. Yes

  4. Yes

Reasoning

1. “Sabbath observance is a fundamental tenet of the worldwide church of God. It is a time of worshipping God, spending time with family, church service and church socializing. It is church doctrine that Church Members not work on the Sabbath except in emergencies. In non-emergency or non-essential service situations, an adherent of the faith would endeavor to wind down his activities so as to have completed them by the time the Sabbath commenced with the setting of the sun.” (16

2. The University Accommodated Mr MacEachern by 

  • Allowing him to swap shifts until such time as he created an unreasonable safety risk by not showing up to work
  • Advertizing for a relief operator
  • Trying to find him another position in the university

3. The Union Accommodated Mr. MacEachern by

  • Proposing that the existing relief operator replace him on the Sabbath shift
  • Offering to represent Mr. MacEachern in a grievance    

4. Three factors made it impossible to accommodate Mr. MacEachern:

  • An essential service, the boiler plant, that must be attended at all times. The University had statutory obligations to provide a safe environment for workers. When MacEachern failed to report to work (twice), he put his coworkers at risk. This justified the University’s Sept 6th directive to MacEachern not to “unilaterally change [his] shift schedule or refuse to report to work”. This directive was not discriminatory. The proposed schedule, that the university suggested but then rejected, would have introduced unreasonable safety risks by “creating a greater potential for increased fatigue and stress in a workplace that demands alertness and good judgment”. The failure to implement the schedule was not discriminatory. 
  • A very small workforce with a maximum number of five operators. The University tried, without success, to hire a new relief operator. The commission argued that the University should have hired a new full-time operator. However, it failed to prove that the University, which has a smaller operating budget, could afford to hire a new full-time operator and failed to prove that such an addition would resolve the scheduling conflict entirely without damaging employee morale. The Board found that the Union had offered to “pencil in” the existing relief operator to fill in for the Sabbath shifts, and that the University had justifiably refused to use this accommodation measure; the University proved that this would have resulted in a pay cut of 21% to Mr. MacEachern, who had only agreed to a cut of up to 10%. Even at the hearing, no one (including the Commission and the Complainant) was able to propose a reasonable schedule that would have properly balanced the religious rights of Mr MacEachern and the employee morale issue.
  • A strong preference for all employees to have as many weekends off as possible. Although the Board cautioned that human rights are more important than social rights (the right to have time off on weekends to spend with family/friends), it underscored that employee morale is a factor to be considered when judging the reasonableness of any given accommodation.  In this case, modifications to the 12-hour shift schedule “eroded the regularity and equality of the schedule with respect to numbers of shifts worker, number of days and nights worked and numbers of weekends worked”.  In particular, in order to accommodate the complainant, the other operators would have had to work more nights and weekends and, moreover, some of them would have even ended up working fewer shifts resulting in less pay. He said:  “I find that approximately thirty weekends worked by four employees over 18 months constitutes evidence of hardship with further hardship being experienced by two operators who worked double shifts when Mr MacEachern did not report for his scheduled shift due to Sabbath adherence.” 
CRARR v ETS

Does a University/College have to provide prayer space to Muslim Students?

Facts

  • From its establishment in 1974 to the time of the present complaint in 2006, the application form to ETS stated that the University was a “public and lay institution with no rooms assigned for religious practices”. It did have a practice, however, of allowing its Muslim student population to pray on the third floor stairwell or in empty classrooms.  

  • Problems first arose in 2002, when security noticed that a number of students were leaving their prayer carpets in the stairwell, creating a safety hazard. After notifications warning against this practice were posted in the stairwell, students began storing their carpets in a nearby locker, which was kept open for the sake of convenience. These carpets were removed for reasons of liability. At around this time, several students claimed that they were told not to pray in the stairwell.  This claim was denied by administration. In any case, a petition, signed by 80 students, was circulated and students began praying in the entrance-way of the building, in order to attract sympathy for their cause. This initiative was quickly terminated by administration.

  • In 2003, after a series of notices were posted in the washroom forbidding students to wash their feet in the sinks, a group of offended students send a letter to the administration complaining of mistreatment. They also requested a permanent prayer room and asked that the University recognize its student association.  In his response, the head of administration denied mistreating the Muslim student population and made it clear that the University had no intention of assigning a prayer room or accrediting any student group organized on a religious, sectarian or political basis, in keeping with its lay policy on student groups. 

  • One month later, the ETS newsletter quotes this administrator inviting Muslim students seeking better religious accommodation to seek alternative educational opportunities: “I know all about you people and if you want to say your prayers you just have to change universities”.  He fervently denied ever saying this.

  • The general secretary of the ETS testified that “the rooms were occupied to their full capacity most of the time” He stated that “to allocate a room for prayer would constitute an excessive constraint”. (6)

    Centre de recherche-action sur les relations raciales (CRARR), on behalf of 113 students and F.G. v Ecole de Technologie supérieure (ETS) and R.N. (2006). Resolution COM-510-5.2.1

Questions

  1. Did the refusal of the University to recognize the Muslim Student Association deny Muslim students the right to free assembly and/or constitute discrimination

  2. Did the head administrator pronounce discriminatory remarks about Muslim students?

  3. Were the notices placed in the washrooms "discriminatory notices"  

  4. Did the University fail to fulfil its duty of reasonable accommodation?

  5. Does the University have to provide a prayer room for Muslim students 

Answers

  1. No

  2. No

  3. No

  4. Yes

  5. No

Reasons

  1. The refusal of the University to recognize the Muslim Student Association did not deny Muslim students the right to free assembly, nor did it constitute discrimination

  2. There was insufficient evidence of discriminatory remarks by the head administrator

  3. The notices placed in the washrooms were not “notices” in the sense afforded the term in the Charter and were therefore not discriminatory

  4. “With regard to the facts in dispute, the chronology of events and the evidence as a whole gathered during the investigation tend to show that the ETS failed to fulfil its duty of reasonable accommodation” (15). For example, the wording on the application form, which states that “ETS is a public, lay institution with no rooms assigned for religious practises”, reflects “a rigid attitude that is incompatible with the duty of reasonable accommodation incumbent on the ETS, namely to allow students of the Muslim faith to pray, on a regular basis, in conditions that respect their right to the safeguard of their dignity” (16)

  5. The allocation of a room exclusively reserved for the practice of a given religion could constitute undue hardship, since it could lead to other similar demands (page 15). 

Orders 

It therefore ordered ETS to

  • Propose an accommodation to the plaintiff, that ensures that students of the Muslim faith attending ETS are able to pray, on a regular basis, in conditions that respect their right to the safeguard of their dignity 15

  • Remove from its application form the works “with no rooms assigned for religious practices”

Markovic v Autocom

What is an acceptable accommodation policy?

Facts

This case concerns a religious accommodation policy written by an employer, Autocom Manufacturing Ltd., after it was accused of discrimination on the basis of creed. The complaint was filed when Autocom refused to grant for refusing to grant Markovic two days paid leave to celebrate Eastern Orthodox Christmas. Both parties agreed to have the Tribunal review the policy before proceeding with the complaint.

The policy established a procedure for seeking accommodation which required the employee to make a formal request for accommodation to the supervisor; to provide proof that the faith day required time off work; and to make the request well in advance of the faith day. The policy set forth a menu of optional accommodations for the employee, including making up lost time on a later date, working on a secular holiday, shifting shifts with a coworker, adjusting the employee’s shift schedule, using outstanding paid vacation and taking a leave of absence without pay. The employer was then required to consider whether the employee’s request and preferred option for accommodation could be granted without causing undue hardship. Employees who were dissatisfied with the proposed accommodation were advised of their right to pursue avenues of redress within the company… Markovic v Autocom Manufacturing Ltd., 2008 HRTO 64 (CanLII)

Arguments

The Ontario Human Rights Commission argued that the policy was discriminatory because
  • Making up time as the default for accommodating Code-related needs does not achieve equality of outcome. If employees are required to make up time, in essence they are accommodating themselves, with the employer only being required to be flexible to allow this.   

  • Non-Western Christians have to engage in a process of negotiating their entitlement to their days of observances rather than having it automatically recognized. This may require them to unnecessarily and uncomfortably delve into their personal circumstances.

  • Western Christians are able to plan their daily lives without being concerned with alternating work schedules and working extra time ad are not faced with practical considerations such as childcare arrangements and transportation issues.  

  • Negotiating accommodation has an impact on human dignity for persons of minority faiths not experienced by those belonging to the majority religion

  • It is inconsistent with the notion of universal and inclusive design … to require re-arranging work schedules as a first option  

Autocom's arguments in favor of the policy...
  • Christmas day and Good Friday have become secular holidays.  Therefore, a work calendar based on Western Christian practices is not prima facie discriminatory.

  • Such a work calendar can,  however, have a discriminatory effect on persons whose faith dates do not fall on these secular holidays.  This discriminatory effect arises when the employer does not accommodate the employee who seeks time off to observe a faith date.

  • Recent case law indicates that an employer fills its obligation to accommodate religious observances when it provides a menu of options for time off.  

  • The process of negotiating time off for religious observances is not an unfair burden, but an appropriate mechanism which respects the right of employees to individualized accommodation

  • Chambly does not required paid leave for religious observance  

Question

Was the proposed policy appropriate and consistent with the Code?

Answer

Yes

Reason

The Tribunal ruled that the policy, which provided a menu of options for scheduling changes, was appropriate and consistent with the Code and the jurisprudence even though it did not include the option of getting two days paid leave. 

The obligation on the employer is to design its workplace standards in a way that recognizes differences in religion amongst its individual employees, and accommodates those differences. The task is to mesh its workplace rules with the needs of a diverse workforce, with the goal of enhancing participation and inclusion. In the case of religious observances, those goals can be met through the provision of options for scheduling changes that do not result in loss of pay. (para 47)

After doing a review of relevant cases, the tribunal made the following conclusions about arguments raised by both parties:

Conclusions

1.       Christmas Day and Good Friday have become secular pause days. The schedule of work based on these holidays is secular in nature and non-discriminatory on its face.  

2.       The schedule of work can be seen as discriminatory in its effect because it allows observant Western Christians to celebrate two important faith days but requires observant employees of other faiths to work on their most important faith days.

3.       All employees, however, are given two paid holidays.  The Commission’s “equality of outcome” standard is therefore not helpful. Since all employees are given paid holidays, the only difference in treatment is time off to observe religious days.

4.       Since the discriminatory effect arises only from a conflict with the work schedule (and not with the provision of paid pause days) the solution should involve a search for ways to modify the work schedule in order to enable time off.

5.        The provision of options for scheduling changes without loss of pay…

         a.       satisfies the employer’s duty to accommodate

         b.      is consistent with principles established by the Supreme Court                                                               

                  i.      in Hydro-Québec (2008) which demonstrated that the duty to accommodate does not trump, but rather co-exists with, the employment contract (the duty to provide services for pay); and                                                              

                         ii.      in McGill University Health Centre (2008) which underscored the importance of individualized accommodation and autonomy of choice in the accommodation process; and                                                             

                 iii.      in Chambly (1994) which did not establish as a general principle that employers must pay employees for time off for religious observances. In Chambly, the employer was required to provide two paid days to the employee because 1) the work schedule (at a high school) was inflexible 2) the Collective Agreement allowed for three days of paid special leave that had historically been used for religious accommodations.  

6.       A menu of options does not impose an unnecessary and unfair burden on employees by obliging them engage in dialogue and negotiation with the employer (this is the very nature of the accommodation process)  

Noble v York University

What is an appropriate Religious Accommodation Policy?

Facts:

Dr. Noble, a history professor at York University, wrote letters to the President, the Chair of Senate, the Ministry of Training, Colleges and Universities and the Ombudsman complaining about the university’s practice of not scheduling classes on Jewish High Holidays. He held that this was a discriminatory practice that privileged Jewish students and discriminated against non-Jewish students. He wanted the University to terminate the policy or extend it to all students. When the University made it clear that it was not going to change its practice, the professor “went public”; in his classes and in the student newspaper he announced that he was holding classes on Jewish High Holidays. Following this announcement, the University sent a message to all faculty members cautioning them to respect university policy. Dr Noble complied with this directive, but also began cancelling classes on the high holy days of all other students. Dr. Noble faced hostility from certain Jewish students in his classroom and had to call security twice when one student became aggressive. This student later filed a complaint against Dr. Noble with the University’s Human Rights Office. Dr. Noble alleged that the University sided quickly and unfairly with the student and did nothing to protect him and his family from the harassment he faced. David Noble and York University and Robert Drummond (Dean of Faculty of Arts), Lorna Marsden (President) and Patricia Bradshaw (chief executive officer) AAHD-6HBS9C

Questions

  1. Was Dr. David Noble subjected to unequal treatment in services and with respect to employment on the basis of creed and association?
  2. Was Dr. David Noble subjected to reprisal for claiming and enforcing his rights?

Rulings

  1. Yes
  2. Not enough information

Reasoning

  1. “The university’s practice of not scheduling classes on Jewish high holy days clearly results in differential treatment on the basis of creed, in that individuals in one group (those of Jewish faith) are given preferential treatment over others. The Commission’s Policy on Creed and the Accommodation of Religious Observances cites the decision of the Supreme Court of Canada in the Chambly case, in which it ruled that since Christian employees receive the benefit of two paid religious leave days through the statutory holidays for Christmas and Easter, non-Christian staff were subjected to constructive discrimination. York’s practice has a similar effect, in that Jewish students are entitled to observe their religious holy days without missing classes or having to specifically request religious accommodation, while students of other faiths are required to either miss classes or take proactive steps to negotiate accommodation for their religious observances”. (Para 25) “The commission’s policy cites as an example of direct discrimination in services on the basis of creed, a public school giving priority to the Lord’s Prayer as part of opening and closing exercises, stating that such a practice fails to treat non-Christians equally. York’s practice is an analogous situation” (para 26) .      
  2. The evidence relating to the reprisal allegations is less clear and requires testimony under oath to assess the relative weights of the positions of all parties on that ground (para 26)

NB The Ontario Human Rights Tribunal has heard final arguments, but has not yet made a ruling, in the related case of reprisal allegedly suffered by Professor Noble at the University when he campaigned against the policy.

Sonnenberg

Do service providers have the right to discriminate, based on their religious beliefs, against groups protected by human rights law?

Facts

Klaus Sonnenberg is the pastor of « New Life Center, a church affiliated with the Pentecostal Assemblies of Canada. In 1984, Sonnenberg attempted to rent an auditorium or theatre on the campus of the Centre Universitaire St. Louis-Maillet so that he could hold a gospel assembly “to proclaim the gospel in a neutral location”. His request was denied. One year later, he attempted to rent premises on campus to promote a guest speaker, Dr. Wilkerson, evangelist and founder of “Teen Challenge”. He filed a complaint of discrimination in the provision of services on the basis of creed.  The Director of Student Services admitted that he had personal prejudices against Sonnenberg’s creed but that these discriminatory attitudes did not affect his decision not to rent the facilities to him. Rather, he was operating in accordance with facilities rental policy of the Université de Moncton. According to this policy, each campus has the authority to control the general public’s access to its premises based on an assessment off the effect of the event on the student population. If the campus had reason to believe that a group might “bother or involve the students”, then it could refuse to rent premises to that group on that basis. The University told the Board of Inquiry that an incident in 1979, in which a member of a religious group stripped the university chapel of its contents, led to the elaboration of a room rental policy in 1982 which granted authority to each campus to control the public’s access to its premises (38883). . Sonnenberg v. Centre universitaire St-Louis-Maillet (1987) 9 C.H.R.R. D/5100 (N.B. Bd. Inq.)  

Question

Does the University’s facilities rental policy constitute discrimination on the basis of creed?

Decision

No

Reasoning

The University has a human rights obligation to offer facilities to members of its own limited public (registered students) but not to members of the general public (non-students). Although the Board found that the director of Student’s services personal prejudices to be unfortunate, it ruled that the Human Rights Act does not apply to this case: "Here I regretfully conclude that the appellant’s claim must surely founder. No matter how I strain to extend the meaning of the clear words used, I find it impossible to conclude that facilities provided by a private university for students that it has chosen to admit to the university can be considered facilities which are “customarily provided” to members of the public off facilities to which “members of the public have access.” The facilities are not provided for the public at large but are provided only for the registered students off the university. A member of the public has no right of access, unless he is a student, to athletic ort other facilities of a university, or to be considered for participation in university athletics.  Similarly, accommodation in university residences or restaurant or other services in university buildings are not “customarily provided to members of the public nor do members of the public have access to them"

University of Victoria v BC Attorney Genera

Can Universities offer bursaries on the basis of religion?

Facts

A donor, Ms. McConnell, left money to the University of Victoria and specified that she wanted them to create two scholarships, one in education and one in music. The stipulation was that the recipients be Roman Catholics. Concerned that this provision might constitute discrimination on the basis of creed, or a breach of public policy, the University asked the court for guidance. University of Victoria v British Columbia (Attorney General) (2000), 37 C.H.R.R. D/200, 2000 BCSC 445

Question

  1. Is the awarding of such a bursary  considered to be "a service customarily available to the public" ?
  2. If yes, is the breach of human rights acceptable?

Answer

  1. No
  2. Yes

Reasons

  1. The Court’s point of departure was that the Code prohibits discrimination, on the basis of religion, with respect to services customarily available to the public.   In this case, however, the relevant relationship was a private one between the deceased (a private citizen) and potential recipients of the award. The University’s role was not to offer services, but to act as a conduit. Since the relationship is a private one, the religious provision attached to the awarding of the bursaries was determined to be not discriminatory.
  2. The Court also stated that in the alternative, if the relevant relationship in this case was the public relationship between the university and its students, then the provisions were a breach of the code. The question became: are they an acceptable breach? The test it used was the following question: Is there a bona fide and reasonable justification for the discrimination? Yes, it found, for the following reasons:

1.       The discriminatory language used in these bursaries was relatively innocuous compared that the inflammatory language used in the Leonard bursaries, “where the terms of the trust were based on blatant religious supremacy, racism and sexism” (16)

2.       Faith is a human right. If we were to eliminate bursaries offered only to persons of a given faith, we would have to eliminate bursaries offered to persons based on other human rights (race, origin, gender, disability)

3.       To eliminate all bursaries offered to persons “who have historically suffered systemic discrimination” would be an unacceptable breach of the “freedom of testamentary disposition”

4.       Had the donor left the money to a non-public institution, the code would not apply. Declaring them discriminatory just because they were left to a public institution would be arbitrary and misguided.

NB

The Court compared this bursary to the Leonard educational trust, which the Court had voided as “offending public policy to the extent it discriminated on the grounds of race, religion and sex”. In the re Leonard decision, however, the Court “sought to restrict the precedential value of the decision” (24) by pointing out that not all scholarships that privilege persons on the basis of religion are contrary to public policy (23) and that each trust must be evaluated on a case by case basis. Not all restrictions amount to a breach of public policy.

Noble v York University

Freedom of expression: When do constitutional/collective agreement rights override Human Rights? 

Facts

"On November 18, 2004, Noble distributed a hand-out entitled “The York University Foundation: The Tail that Wags the Dog” (3). On November 19, 2004, The Canadian Jewish Congress Ontario Region and the United Jewish Appeal issued a press release, suggesting that Noble’s actions constituted anti-Semitism. The same day, York issued a joint press release (with the York University Foundation, Hillel, and Solidarity for Palestinian Human Rights), denouncing the material distributed by Noble as highly offensive bigotry. (4) On November 21, 2004, the Canadian Jewish News ran a story on the topic. The Story also noted that Noble was trying to stop York from cancelling classes on Rosh Hashanah, Yom Kippur and Good Friday. The article noted that the president of the Canadian Jewish Congress supported York’s practice. At this point, Noble’s letters to Marsden and Bradshaw had not been made public. (5) As a result of the joint press release, Noble filed a grievance, alleging that York had breached Article 10.01 of the Collective Agreement. The grievance proceeded to arbitration, and by decision dated November 26, 2007, the arbitrator found that the issuance of the joint press release was a breach of Article 10.01 by York. York was ordered to remove the media release from its website, and to pay damages to Noble."   In the Matter of an arbitration between York University and York University Faculty Association and in the matter of a grievance dated November 29th, 2004 (2007 CanLII 50108 (ON LA)) (This list of facts is taken from Noble v York University (no1) (2009) CHRR Doc. 09-1644, 2009 HRTO 1201. Page 7 of 15)

Questions

  1. Did the issuance of a Media Release by York University on Friday, November 19, 2004, contravene Article 10.01 of the Collective Agreement  

    • "The parties agree to continue their practice of upholding, protecting, and promoting academic freedom as essential to the pursuit of truth and the fulfillment of the University’s objectives. Academic freedom includes the freedom of an employee to examine, question, teach and learn; to disseminate his/her opinions on any questions related to his/her teaching, professional activities and research both inside and outside the classroom; to pursue without interference or reprisal, and consistent with the time constraints imposed by his/her other University duties, his/her research, creative or professional activities, and to freely publish and make public the results thereof; to criticize the University or society at large; and to be free from institutional censorship. Academic freedom does not require neutrality on the part of the individual; nor does it preclude commitment on the part of the individual. Rather, academic freedom makes such commitment possible." Article 10.01Did the issuance of a Media Release by York University on Friday, November 19, 2004, breach Article 3.01 of the Collective Agreement?

  2. Did the issuance of a Media Release by York University on Friday, November 19, 2004, contravene Article 10.01 of the Collective Agreement  

    • "The parties agree that there shall be no discrimination, harassment, interference, restriction, or coercion exercised or practiced with respect to any employee in any matter by reason of race, creed, colour, age, sex, marital status, family relationship, number of dependents, nationality, ancestry, place of origin, place of residence, political or religious affiliation or beliefs, sexual preference or orientation, nonconforming personal behavior, disability m nor by reason of membership or non-membership in the Association, nor previous or impending exclusion from the bargaining unit, nor lawful activity or lack of activity in the Association. Non-conforming personal or social behavior: shall not include failure to conform to the terms of this Agreement or to carry out the duties and responsibilities stipulated herein.

  3. Did the issuance of a Media Release by York University on Friday, November 19, 2004, constitute defamation?

    • In order to succeed in a defamation case, the parties agree, three things must be proven:

      1. That the words about which the plaintiff complains are defamatory 

      2. That they referred to the plaintiff

      3. That they are published to a third person

Answers

  1. Yes
  2. Yes
  3. Yes

Reasons

  1. In its response to Professor Noble’s pamphlet, the University failed to live up to its obligations under Article 10.01.

  2. This argument was not well developed during the hearing. 

  3. In this case, the words used by the University, and published to a third person, implied that the plaintiff's words and ideas were racist. This is in and of itself defamatory. However, the University did not identify Noble as the author of those ideas. Therefore the University's actions were "not sufficient to satisfy the requirement of identification in defamation"

Hamedanian v Capilano University

What does a complainant need to demonstrate in order to have a reasonable prospect of success in a religious discrimination case?

Facts

 Maryam Hamedanian is an Iranian woman of the Muslim faith. Her employment with Capilano University, where she worked as a systems analyst, was terminated at the end of the 6-month probation of her 1year paternity replacement contract. The employer contends that the termination was made on the grounds of poor performance and disruptive behavior whereas the employee alleges that it was made on the basis of her creed and gender. The facts show that the complainant had a history of volatile disagreements with her manager, the director of ITS and several senior colleagues with whom she refused to cooperate, from whom she refused to take direction and whom she considered to be inferior both in terms of educational achievement and its competency.   She stated, at Tribunal, that she represented a threat to her coworkers in ITS. She also contended that they considered her to be inferior to them because she was a woman and a Muslim.    When the University received notification of the Human Rights Tribunal hearing, it filed an application to dismiss the case on the ground that it had no reasonable prospect of success.

The allegations refer specifically to three incidents: 1)      During a conversation with a curious coworker, the complainant explained that not all Muslims abstain from drinking and that she herself enjoyed moderate social drinking. At this point, she contends that her manager made a discriminatory remark; he preferred his workers to be heavy scotch drinkers. The complaint alleges that this was a joke, but an offensive one that discriminated against her on the basis of gender and religion. The Manager denies making this or any other joke about alcohol. 2)      The complainant also alleges that at the Staff Christmas Party, her manager and the project manager loudly discussed the Christian nature of Christmas, a discourse which deeply offended her as a Muslim woman. They deny making any such comments. 3)      After the Respondent filed an application to dismiss this case, the complainant made a third allegation. She claimed that a coworker, one who had reported her to Human Resources and the Director of ITS for disruptive behavior in the workplace, had declared that “women had no place as Systems Analyst or in the systems Analysts’ room.”  Maryam Hamedanian and Capilano University (2009) BCHRT 308

Question

Does the complainant have a reasonable prospect of establishing a nexus between the grounds of discrimination and alleged adverse treatment?

Answer:

No

Reasons:

1)      The drinking comment was innocuous and not prima facie discriminatory.

2)      The fact that the complainant neglected to make the allegation of gender discrimination against a coworker in the original complaint makes it less than credible.

3)      Although the Christmas party comment might possibly constitute discrimination, the case can be dismissed based on a global assessment of the entire situation:

a.       It does not make sense that the respondent would hire a person into a short-term position in order to see her fail; it makes more sense to believe that they wanted to hire the best person for the job and to facilitate her success to the highest possible degree. 

 b.      It is contradictory to assert that your coworkers are both threatened by your superior skills and scornful of your inferior skills. Moreover, the hiring of another Iranian woman of the Muslim faith at this time, and at a higher rank, in the ITS department undercuts the complainant’s speculation that she was seen as a threat by the department because of her faith, ethnic origin and gender.  Unlike the employee, the manager feels included, respected, and equitably treated.

c.       The complainant agrees with most of the statements made about her disruptive behavior, her disagreement with procedures, and her public defamation of her colleagues’ competency. The mere possibility of discrimination is not enough to merit the time, energy and expense of a public hearing if there is no reasonable prospect of success.

Hsieh v York University

Facts

Hsieh was a social work student expelled from the program due to poor performance. She alleged discrimination in the provision of services on the basis of creed and disability (differential treatment resulting in lower grades).  The applicant’s allegations of religious discrimination are linked to her views on gay marriage and her inability to work with trans-gendered persons. The two creed-based allegations are as follows:

1) Her mark in AK-SOWK 4020 Issues in the Study of the Welfare State: Power Organization and Bureaucracy

In this class, students were assigned group work projects. Rather than discuss the topic assigned to her group, the applicant insisted that they debate the question of gay marriage. The other students complained to their teacher, Mr. Martin, because they wanted to concentrate on the assignment material and they found her remarks to be homophobic. To resolve the problem, the instructor changed the marking scheme, awarding an individual mark to each student. The applicant claimed that “the decision to mark a group assignment on an individual basis impacted her final grade for the course and that this was done because her classmates and Mr. Martin disagreed with her wanting to ask questions about gay marriage. This is a violation of her charter rights to religious freedom and freedom of speech”.   The case resolution conference determined that the instructor had acted appropriately

There is no evidence the applicant was subjected to differential treatment because of her religious belief. I accept Mr Martin’s evidence that the decision to mark this assignment on an individual basis did not affect her final result for the course. I find that the decision to alter the grading scheme for the group assignment was motivated by a good faith attempt on his part to create an environment for the other members of the group to get on with the work at hand. (37

2) The Comments of the Undergraduate Program Director

The applicant claims that in a meeting to discuss her unfair grade in another class, the Undergraduate Program Director called her a homophobe, expressed disapproval of her opinions about trans-gendered people and advised her to leave the program.  She then refused to order the professor to allow the applicant to rewrite a paper. This, she thought, was discrimination based on creed. 

The Director insisted that while she did not call the applicant a homophobe, she had mentioned that other students had concerns about some of her comments which they considered to be homophobic. She stated that she did not have the authority to order any instructor to allow a student to re-write a paper/test and that she had advised the student what channels to take if she wished to pursue that option. Hsieh v York University (No. 1) (2009), CHRR Doc. 09-0834, 2009 HRTO 606

Question

  1. Did the professor discriminate against the student?
  2. Did the administrator discriminate against the student?

Answer

  1. No
  2. No

Reason

1)   The case resolution conference determined that the instructor had acted appropriately. There is no evidence the applicant was subjected to differential treatment because of her religious belief. I accept Mr Martin’s evidence that the decision to mark this assignment on an individual basis did not affect her final result for the course. I find that the decision to alter the grading scheme for the group assignment was motivated by a good faith attempt on his part to create an environment for the other members of the group to get on with the work at hand. (37

2)  The Tribunal accepted the Director’s evidence. “I accept Ms. Rossiter’s explanation that she was concerned the applicant was having trouble with the course content, most importantly the ability to critically self-reflect on her own biases and values. She did raise the possibility of other academic pursuits. There is no evidence of discrimination on the basis of creed disclosed by these facts.

Both applications were dismissed as were all applications on the basis of disability; she suffered a brain injury in 1995 and has a hearing impairment. She did not provide documentation or even reveal her disability to her instructors until AFTER the courses were finished.

Maughan v University of British Columbia

Facts

  • Cynthia Maughan claims to have been exposed to deliberate and negligent mistreatment on the basis of her religion. In 2001, Cynthia Maughan, a mature student at UBC, was offended by a comment made by a fellow graduate student on a university listserv.  In his critique of the Canadian Alliance Party, he expressed regret that that the ancient practice of stoning Christians was no longer a viable option. A debate ensued, the male student refused to apologize but Maughan did not file a complaint.
  • The author of the offensive remark ended up in the same English seminar (on the theme of giving/receiving) as Maughan one year later. After weeks of negotiation, the students agreed to hold a graduate seminar at his house on a Sunday near the end of class. Maughan did not object to this agreement in class, but later requested that the professor move the time and place of the conference. There is no written proof that Maughan informed the professor of any religious reasons for wanting this change, and professor claims to have denied it on the grounds of having already negotiated the deal democratically. 
  • In class one day, the students were discussing a Derrida text in which the author translated a passage from the Bible and referred to the last supper as a cannibalistic offering. Maughan took great offense at the translation and to the metaphor and a vigorous debate ensued. Maughan felt shocked and overwhelmed by other student’s support for Derrida. She contacted a professor in the French department for help with her concerns over the translation, but the professor advised her “to get over it”.  
  • Following this class, Maughan asked the Professor for permission to withdraw from class participation and from the class seminar. The Professor agreed, expressed regret about Maughan’s reaction to the Derrida text, but added that she could do nothing to change Derrida’s politics. The Professor accommodated Maughan by allowing her to write a paper rather than give an oral presentation. 
  • Near the end of the semester, two week before the paper was due; Maughan submitted her proposal in an email attachment. The professor claims not to have seen the attachment until after the course had ended. A week before it was due, Maughan called the professor to request an extension, which was refused. The paper submitted one week later was on a new topic and contained a critique of the professor who refused to grant a student an extension on a paper about Derrida. 
  • When Maughan received her marks (40.8/60 on the paper, 13.6/20 on the proposal, 17/20 on another short paper for a total of 73% in the course) she wrote an email demanding if the professor had granted extensions to other professors. The professor referred her to the departmental equity committee.  When she received her comments on the final paper, she saw in them “a perversion of the facts and a denial of her religious and academic freedom” and took steps to redress the situation.
  • Over the next few months, Maughan took her concerns to the Equity Office (which was powerless to help her because she refused to file a complaint and refused to allow them to contact the professor), the Faculty of Graduate Studies (which gave the professor two options; let the student redo the paper or let her take the paper to the departmental equity committee), to the Departmental Equity Committee (whose investigation determined the complaint was without merit), back to the Faculty of Graduate Studies (which rejects her appeal of the department’s investigation), the Senate Committee (which dismisses her appeal of the Faculty of Graduate Studies’ ruling), the Supreme Court (which dismisses the action based on lack of evidence).  Maughan v University of British Columbia (2009) CHRR Doc 09-2339, 2009 BCCA 447 Appeal from (2008) CHRR DOc. 08-1137, 2008 BCSC 14.

Question

Did the Supreme Court err in ruling that there was no evidence of discrimination based on religion or of negligence?

Answer

No 

Reason

The Court of Appeal agreed with the Trial Judge’s determination:  "This is a case which in the final analysis fails because it relies on speculation, innuendo and conjecture, rather than inferences based on the evidence, of the respective states of mind of the various defendants necessary to establish liability; in the case of the CRPA, the intention to interfere with the plaintiff’s civil rights by promoting hatred, contempt or her inferiority in comparison to others based on her religion, in the case of bad faith negligence, malice or ill will arising out of religious bias, or otherwise."

Tahmourpour

Facts

Ali Tahmourpour was a Muslim cadet of Iranian origin who was expelled from a RCMP training program and not allowed to reapply. The RCMP argued that he had underperformed in many of the core areas of competency and that his erratic behavior at the time of dismissal caused them to disallow his application to the program. Tahmourpour alleged that he had been the victim of harassment and discrimination, More specifically, he claimed that he was

  • Was ridiculed, in front of the other cadets, for not taking off his religious pendant contrary to RCMP policy
  • Was mocked for signing his name in the Persian language.
  • Was subjected to verbal abuse by an instructor who prided himself with being politically incorrect, and who was known (within the RCMP) for targeting visible minorities and unattractive women.
  • Became a victim of reprisal when he stood up to the bullying instructor, who influenced other instructors to evaluate the complainant very harshly.
  • Was subsequently unfairly and inappropriately evaluated by several instructors who failed to note his improvements and achievements while exaggerating or fabricating his weaknesses.  
  • Was not given the same opportunity to succeed as other cadets on the basis of his religion, race, ethnicity and/or colour. 
  • Was wrongfully expelled from the program and
  • Was wrongfully denied the opportunity to reapply, based on the psychological assessment made by a doctor did not remember making the comment and or assessing the complainant. 

 Ali Tahmourpour and Canadian Human Rights Commission and Royal Canadian Mounted Police (2008) CHRT 10

Issues

  1. Was Mr. Tahmourpour subjected to discriminatory remarks, hostile treatment and verbal abuse by his instructors at the Depot?
  2. Was Mr. Tahmourpour ’s performance at the Depot was improperly evaluated?
  3. Was Mr. Tahmourpour ’s training contract terminated on the basis of false pretences?
  4. Was Mr. Tahmourpour was improperly designated as being ineligible for re-enrolment in the Cadet Training Program at the Depot?
  5. Was Mr. Tahmourpour the victim of harassment on the basis of a prohibited ground of discrimination while at the Depot?

Ruling

  1. Yes
  2. Yes
  3. Yes
  4. Yes
  5. No  

Reasoning

  1. The religious pendant incident, the hostile and abusive behavior of an instructor, and the derogatory comment about his handwriting were incidents of  adverse differentiation,

  2. Many of the assessments were shown to be inaccurate or at least heavily influenced by racist attitudes. Other were shown to be accurate, but the Tribunal stated that the discriminatory treatment of the complainant contributed to his poor performance. It relied in part  upon evidence of high attrition rates of minority cadets to draw this conclusion,

  3. The recommendations for dismissal were based on these discriminatory assessments.

  4. The recommendation not to be readmitted was based on a non-existent medical report and on facilitators who had discriminated against him

  5. There was no evidence of harassment

Order

The Tribunal ordered that the RCMP

Ø  Allow the complainant to reapply

Ø  Pay him for two years loss salary

Ø  Pay him the salary of an RCMP officer (corporal rank) minus the average full-time industrial wage for persons his age until such time as the complainant accepts or rejects the offer to reapply 

Ø  Pay him $9,000 in damages to dignity

Ø  Pay him $12, 000 in special damages due to willing and reckless wrongful treatment

Ø  Pay him  $9,500 in compensation for the expenses he incurred in minimizing his losses

Ø  Pay him his legal fees    

NB

This case was appealed to the Federal Court, which found that the Tribunal had made some errors in law and has sent it back to the Tribunal for another member of the Tribunal to hear it.  The Court did not find fault, however, in the use of systemic data to draw conclusions on a case of individual discrimination.  We will keep you updated on the outcome of the case.