What are the limits of religious accommodation in Canada?  Is an employer required to accommodate a request by an employee not to work with an employee of the opposite gender, for religious reasons?

This topic has been generating a great deal of publicity lately in light of recent events at York University.  The National Post reported that the university is continuing to stand by its decision to accommodate the request of a male student to refuse to conduct group work with women, for religious reasons.  (See Tristin Hopper, January 9, 2014).

From the details that have been provided, Professor Paul Grayson received a request from a student in an on-line course to be exempt from a group work project because it would have involved intermingling with members of the opposite gender.  The student raised religious grounds as the basis for the requested accommodation.  The professor opposed the request but sought further clarification form the university.   The Dean’s office and the University’s Centre for Human Rights both took the position that this type of request should be accommodated.

Should Canadian universities and Canadian employers be accommodating this type of request?  Are they required to do so?  Are they permitted to do so?  What are the limits of accommodation of religious practice?

On the one hand, the Canadian Charter and human rights legislation across the country protect religious freedom.  Canadian courts, including the Supreme Court, have consistently recognized that religious practices and requirements must be recognized in a multicultural society to enable Canadians of all different ethnic and religious backgrounds to fully participate in Canadian society.  Our courts have recognized the right of Canadians to wear turbans, kippahs, hijabs and other religious clothing.  Our courts have also provided protection for those who cannot work on certain days for religious reasons and to those who require breaks at certain times during the day for prayer purposes.  In all of these types of cases, the only question has been whether the accommodation will cause “undue hardship.”  In most of these cases, it will not.

But what happens when a requested religious practice or accommodation clashes with the rights of other people?  What happens where the religious right that is to be accommodated will infringe on the fundamental rights of another person, for example the right to gender equality?

There are very few cases to date which have addressed these issues although we are likely to see an increasing number of them over time.  In my view, employers, universities and other institutions must reject requests for religious accommodation if the accommodation will infringe on someone else’s fundamental right.

It is worthwhile mentioning a few cases that have discussed some of the relevant principles:

1.  In the case of Saskatchewan (Human Rights Commission) v. William Whatcott, the Supreme Court upheld certain hate speech restrictions.  The Court expressly noted that religious freedom cannot be used as a basis for justifying hate speech against gay people.

2.  In the Saskatchewan Marriage Commissioners Reference, the Saskatchewan Court of Appeal rejected the argument that the Province must accommodate the religious beliefs of those who would refuse to perform same-sex marriages, while working as marriage commissioners.  The Court of Appeal noted that employees of the Province would be required to serve the public in accordance with existing provincial law.  This decision related to City Hall marriages – or other marriages that were performed by the Province rather than in a religious institution.

3.  In R. v. N.S., a 2012 decision of the Supreme Court, the Court determined that a witness could be required to remove a niqab when testifying in Court in certain circumstances.  The Court highlighted the importance of accommodation of religious practices and discussed the development of this right since the Charter.  But the Court also accepted the principle that there is no “hierarchy of rights” under the Charter,
and sought to protect the rights of an accused to a fair trial.

Looking at some of these important cases that have been decided to date, we can see that Canadian courts will not allow individuals seeking accommodation of a religious practice to undermine the rights of others to an equally important fundamental right.

Imagine an employee of a retail establishment claiming that he or she could not serve employees of a certain ethnicity or religious background.  Would an employer be required to accommodate that request?  “I can’t serve Blacks, Jews or Gays because of my religious beliefs,” says the hypothetical employee.  Surely, employers could not be expected to accommodate this type of request, even if the employee could show that he or she sincerely believed that the requested accommodation was religiously required.  In fact, to do so, would be to violate human rights legislation.  The customer of the retail establishment, if refused service, could assert a breach of the Human Rights Code.

Gender equality must be put in this category as an equally significant and protected right.  Freedom of equality is protected by the Charter.   For someone to argue that he or she cannot work for a boss of the opposite gender, must work only with members of their own gender, cannot be the boss of someone of the opposite gender, or cannot study with someone of the opposite gender would violate the rights of other people to freedom from discrimination.  This is where courts, human rights tribunals and arbitrators must draw the line.

Freedom of religion should be accommodated widely to the point of undue hardship.  This must be the case in a multicultural country.  But Canadians cannot accept that the law requires or even permits people to use freedom of religion to trump the fundamental rights of others, whether at a university or place of employment.