Many employers struggle with the issue of accommodating religious beliefs and customs in the workplace. While employers in Ontario are required to accommodate religious practices as part of their human rights obligations to employees, it can sometimes be a difficult judgment call to determine where to draw the line. It is a decision that is, however, somewhat easier to make when the other side of accommodation involves and the health and safety of other employees.
This is the issue with which the Quebec Court of Appeal dealt in a recent case.
Customs Conflicted with Health and Safety Regulations
The plaintiffs were all of the Sikh faith and all were truck drivers. The Port of Montreal had, for safety reasons, developed a policy that required all drivers to wear a helmet when exiting from their truck and walking in the terminal.
Due to their religious requirement to wear a turban, the Sikh drivers brought a court application to challenge this rule.
Initially, the Port Authority offered a degree of accommodation. The drivers were asked to remain inside their trucks while other employees attended to the required duties outside the vehicles. This was not well-received as there were significant delays as a result. This accommodation was then abandoned as it was seen as by the employer to be an undue hardship on economic grounds.
The initial application was denied, after which the plaintiffs appealed to the Court of Appeal, where the appeal also was dismissed.
Weighing Infringement Against the Mitigation of Risk
The Court of Appeal determined that in this instance, the need to accommodate the religious customs of the plaintiffs was outweighed by the need to provide a safe workplace for other employees. From the summary of the reasons, the Court stated:
The trial judge did not err in holding that the policy was rationally connected to the respondents’ objective of ensuring the safety of persons moving about the terminal grounds. From the expert evidence filed, he accepted that very real injuries happened. Statistics indicate that that risk is not theoretical. Moreover, the policy interferes with the appellants’ rights as little as possible. Hard hats must be worn only when truck drivers are outside their trucks and the time they spend outside their trucks is short. The policy does not compel them to remove their turbans. The risks inherent in an industrial environment and the legal duty to prevent danger and hazards arising out of, linked with or occurring in the course of employment must also be taken into account. The accommodation measure implemented also proved unsatisfactory. The appellants offered no other solution. This duty, however, requires the collaboration of both parties.
For these reasons, the employer’s position was upheld.
In the same argument, the plaintiffs tried to draw an analogy to the case involving the wearing of a kirpan by students at school. This issue had previously been successfully argued in the students’ favour on the basis of an exercise of religious expression of the Sikh faith. That case succeeded primarily as it had been shown that the risk of a dangerous event was so modest as to be theoretical as there had been no such incident in over 100 years.
This argument was not persuasive in the immediate case as the Port had demonstrated by real evidence that there was an actual risk of injury. Also, it was noted that the policy interfered very modestly with the religious expression of the drivers and in fact they could still wear the helmet over their turbans.
Further, the Court stated that religious freedom does not allow the drivers to voluntarily expose themselves to workplace dangers.
To add a final and important point, the Court also reminded all that accommodation remains a two-way street in that both sides to the dispute must consider ways to accommodate the situation. The employees, the court observed, had failed to affirmatively offer some other manner of reaching mutual accommodation.
Religious Accommodation in Ontario Workplaces
This is an important case to understand the duty to accommodate. Similar to the considerations set out in this decision, Ontario also imposes a duty on employers to accommodate the religious rights of their employees. However, it does provide for exceptions in certain circumstances. In the words of the Ontario Human Rights Commission:
Where a rule conflicts with religious requirements, there is a duty to ensure that individuals are able to observe their religion, unless this would cause undue hardship because of cost, or health and safety reasons. [Emphais added]
The issue was a blunt one in this instance as the employer’s case was supported by health and safety concerns, but nonetheless, it is instructive for employers across the country. Both sides in similar disputes must strive to reach for an appropriate solution. Attempts at finding a suitable compromise will be well regarded even if they are eventually discarded as not workable.
Get Advice Before You Act
Accommodation is a difficult issue. The price for failure to do so may be considerable. Get advice first, then act, no matter which side you may be on. It is most important to understand all aspects of this question and the rights and obligations of both parties. Contact the offices of Toronto employment and labour lawyers Mallins Law. We regularly advise employees and employers on legal workplace issues. Contact us online or by phone at 647-792-0310 to schedule a consultation.