Human Rights Advisory Services

Human Rights Advisory Services
Human Rights Advisory Services

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?

InBhinder (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.