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Sabbath Observance and Workplace Discrimination: Ontario HR Tribunal Awards $4,000.
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October 1, 2013Sabbath Observance and Workplace Discrimination: Ontario HR Tribunal Awards $4,000.
Can an employer discriminate against Sabbath observers in the course of interviews for employment in Ontario? If not, what kinds of penalties can employers face when they discriminate in this fashion? A recent Ontario Human Rights Tribunal case awarded an applicant $4,000 in damages for injury to “dignity, feelings and self-respect” when she was screened out of a job due to her Sabbath observance.
L.W. is a Seventh Day Adventist. She applied for a position with the Desjardins Group. The position was a short-term contract to work in a call centre. Ms W was asked in the interview process if she could work on Saturdays. She indicated that she could not since this was her Sabbath. According to the findings of the Tribunal, she was then “screened out” from any further interview process and was not considered for the position.
Surprisingly, the Tribunal held that it was permissible for employers to ask about work availability. The Tribunal noted that there was no evidence in this case to indicate that the question was being asked in order to “classify” the applicant by her creed.
However, the Tribunal went on to conclude that the applicant’s inability to work on Saturdays for religious reasons led her to being screened out from any further interview process. In other words, she was subjected to discrimination on the basis of her creed by the Desjardins Group, according to the Tribunal. It is hard to see how this type of conduct could be prevented if the Tribunal is correct that applicants can be asked by an employer about work availability.
Nevertheless, the Tribunal found that Ms W. had been subjected to discriminatory treatment. It awarded her the grand total of $4,000. This hardly seems like a sufficient incentive to deter employers from discriminating on the basis of creed. Part of the reason for the modest award was that Ms W., apparently, did not provide evidence of any steps that she had taken to try to find other employment. But these damages are of a different type. The $4,000 was awarded as “general damages.” This should reflect the Tribunal’s view of the respondent’s conduct and its impact on the applicant. $4,000 does not seem like very much of a deterrent. I would have thought that $25,000 or $30,000 or even as much as $50,000 would have been an appropriate message to send in light of the seriousness of the impugned conduct and the findings of the Tribunal.
This aspect of the case reminds Ontario residents that even where discriminatory conduct has been proven, the Ontario Human Rights Tribunal may not award a very significant amount of money. Further since the Ontario Human Rights Tribunal does not award payment of legal fees to successful parties, this type of hearing could be very costly for a claimant. In many cases, it may make much more sense for a litigant to file a lawsuit in the Ontario Superior Court and to consider asking a jury for its assessment of damages. A large jury award might serve as a much better deterrent than the modest sum that was awarded in the Desjardins and W. case.
6 Comments
Your comment that “$ 25,000 or $ 30,000 or even as much as $ 50,000.00 would have been an appropriate message to send” boggles the mind. The employer wants someone to work on Saturdays and she cannot work on Saturdays (for her own personal reasons) so the employer simply takes her off the list of potential employees. Why is this “impugned conduct” that requires “a deterrent” – not considering any further someone who says she cannot fit the job requirement of availability ? What is the “appropriate message” that needs to be sent? -do not carry on business on any Friday, Saturday or Sunday because there will be somebody out there who is not willing to work on one of those days for personal religious reasons? Another example of the surrealism that human rights commissions can sink to.
Hi there. Thank you for your comment. Certainly people have different points of view about these matters. However, Human Rights legislation across Canada prohibits discrimination on the basis of religion to the point of undue hardship. This does not mean that a small employer, that must have employees available on Saturdays is forced to hire employees who cannot work those days. However, it does mean that if there is a reasonable way that employers can accommodate people of different religious faiths, they are required to do so. Most employers can accommodate the fact that certain employees will not be able to work on certain religious holy days. In fact, even in this case – the employer stated that it could have and does accommodate some Sabbath observers. So it would not have been “undue hardship” for this employer to have hired another Sabbath observer. However, instead, the employer simply chose to screen the person out – rather than accommodating someone who may have otherwise been qualified. You may not like the fact that Human Rights legislation requires this accommodation but that is the law in Canada and it has been followed by the Supreme Court of Canada since the Charter in 1982. My comment here is directed at the sanction for violating the law. There would be no issue – whether at a Human Rights Tribunal anywhere in Canada – or even at the Supreme Court, that this employer’s conduct violated the law. The issue is what type of sanction that ought to attract. The “message” is that employers can carry on business on whatever days they wish – and they can hire whomever they wish. However, if a person cannot work on a certain day – for religious reasons – and there are reasonable options available for accommodating that person – the employer is required to do so if the person is otherwise qualified for the job. The purpose of that protection is to prohibit discrimination against minority religious groups. This is something that has been enshrined in our Charter since 1982 and human rights legislation from even before that date.
If a employee waited a year to disclose that they’re.7th day. Does that change the rules?
If you became observant – or started observing more strictly – that shouldn’t change the rules. If you have been working for the employer for a year and working on Saturday – and nothing has changed – and now you announce that observe the Saturday Sabbath – they might question your observance. But if you can show that you have an honestly held/observed religious practice, you should be okay.
Hello Ken,
I am of Christian Faith, specifically Anglican, where I observe Sunday as the Sabbath. My employer has since revoked my Sunday accommodation with little explanation. Is there anything I can do? I have filed a grievance through my Union but it has been a year now with no reply. I have been scheduled Sundays in the meantime.
In general, if you can demonstrate that you do observe Sunday as the Sabbath and do not work on that day – you should be entitled to that accommodation – unless it would create “undue hardship” for the employer. Since there is a union, you will really need to get the union to fight this matter for you. If they do not, you may be able to to bring a complaint with the Human rights Tribunal.