Employers must accommodate—unless it causes them undue hardship
There are limits to how far organizations are expected to bend their own rules for the sake of their workers’ spiritual beliefs
You’re a small-business owner. An employee has converted to a religion that requires they take time off once a week to attend a place of worship. Result: a three-hour gap in their workday that a coworker will have to fill. What are your options?
In August 2019, Gary Smith tried to renew his driver’s licence in the bucolic town of Trail. With him, he carried a tricorn pirate-style hat, a metal colander and bags of chutzpah—the former two, at least, being articles of faith for all Pastafarians, who identify as members of the Church of the Flying Spaghetti Monster. Praise be unto [Him/Her/It].
For his licence photo, Smith wanted to wear the colander, which was not lined with aluminum foil, on his head. When this went nowhere, he complained to the BC Human Rights Tribunal, claiming the right to be accommodated on religious grounds.
The Tribunal refused to register the complaint, so Smith escalated the matter to the Supreme Court of B.C. Last March, a judgment was issued. While noting Smith’s “thought-provoking insight,” it essentially ruled that a religion that at least partly exists to satirize religion wasn’t a candidate for accommodation. (Plus, you know, gluten.)
Going out on a limb here: you may be tempted to mock Smith’s sauciness. But for employers facing an increasingly diverse “wokeplace,” the duty to accommodate religious practices is no laughing matter. So where does the duty begin? And where does it end?
First, it has to be triggered. After someone requests an accommodation, the ball is in the employer’s court, says Matthew Allard, an employment and human rights lawyer with the Vancouver office of Fasken. “The first step is to gather sufficient information to determine whether the request relates to a protected characteristic under the [B.C. Human Rights] Code,” Allard explains. With religious accommodations, this is usually straightforward, given that most traditional faith requirements are well known.
However, it’s not just the major religions that warrant consideration. Spiritual practices that fall outside the main can also be protected, provided that, among other things, they’re based on sincerely held beliefs. Once this is established? “Then there’s a contextual analysis to determine whether the employer’s workplace practices interfere with their [employee’s] religious belief in a consequential way,” Allard says. If so, the employer will probably have to do what it takes—unless and until it constitutes an undue hardship.
What? “Undue hardship is a difficult concept to clearly define,” Allard says. “It’s very fact-specific, and what amounts to undue hardship in one situation wouldn’t necessarily amount to undue hardship in another.” For employers, Allard adds, the bar of proof is set high. Adapting a work uniform to make room for most religious attire—a Sikh flight attendant’s dastar (turban), for example, or a Muslim hijab—probably wouldn’t qualify as “hardship,” because it’s unlikely to be prohibitively expensive or negatively impact fellow employees.
But if the accommodation has the potential to significantly affect the business or other workers (possible, in our fictional scenario), it may be deemed too costly or difficult. “Employers are not going to be required to totally, fundamentally change the way they operate their business,” Allard says. As with so many things in life, size matters: “The smaller the operation, the easier it will be for the employer to say that certain requests would amount to undue hardship.”
Interestingly, not every organization is equal. For example, a Pastafarian denied a teaching position at a Christian religious school because of their beliefs would probably not have a peg leg to stand on at the BC Human Rights Tribunal. Certain nonprofits “whose primary purpose” is, according to the Tribunal, to “promote the interests and welfare of an identifiable group,” are exempt from the requirement.
All in all, a very Canadian balancing act. Well, as Canadian as possible—under the circumstances.
Fictional scenario. Not intended as legal advice.