Employment lawyer on the facts of religious accommodations in the workplace
As the conversations around religious intolerance and racism heat up as we head into the Christmas season, employers and HR might be wondering what their actual legal obligations around holiday accommodations are. HRD sat down with employment lawyer Zoya Alam, associate at Goulart Workplace Lawyers, to separate the facts from the drama.
Reactions to a discussion paper on religious intolerance recently released by the Canadian Human Rights Commission (CHRC) have been hitting headlines this week as politicians debate whether or not statutory days off for Christmas constitute religious intolerance or racism.
On Parliament Hill this week Prime Minister Justin Trudeau answered what he called a “totally ridiculous question” on the subject, and the Quebec National Assembly just adopted a motion denouncing the CHRC paper’s comments on holidays: “Honestly, we will continue to celebrate Christmas, and then we will not apologize for celebrating Christmas in Quebec,” said Justice Minister Simon Jolin-Barrette in the Montreal Gazette.
Religious holiday accommodations clear in the Human Rights Act
The CHRC’s paper, released on October 23, discussed religious intolerance, intersectional discrimination and intersectionality, hate speech and violence among other topics. In a section titled “Religious intolerance as a form of discrimination in Canada” the paper stated that an employer’s failure to accommodate an employee’s religious requirements is a form of religious intolerance.
“Discrimination against religious minorities in Canada is grounded in Canada’s history of colonialism. This history manifests itself in present-day systemic religious discrimination,” the paper stated.
“An obvious example is statutory holidays in Canada. Statutory holidays related to Christianity, including Christmas and Easter, are the only Canadian statutory holidays linked to religious holy days. As a result, non-Christians may need to request special accommodations to observe their holy days and other times of the year where their religion requires them to abstain from work the paper stated.”
The law is clear on religious intolerance and holiday accommodations
Parliamentary debates aside, the law is very clear when it comes to religious observances of holidays in the workplace, Alam told HRD. In fact, the CHRC paper is not stating anything that isn’t already currently law under the Canada Human Rights Act.
“It's really saying that employers and workplaces need to accommodate all holidays, including Christmas,” said Alam, adding that Ontario’s Human Rights Act makes further specifications.
“Some considerations the employer does have to take is equality of treatment when it comes to paid religious days off,” she said. “To the extent that the employer can, they should consider things like whether they can provide paid compassionate care leave, for example, for those requests for paid religious days off. So, to try and accommodate where they can.”
How HR can address religious intolerance and ensure equitable days off
HR professionals can support employees who are wanting to request days off for religious holidays by being proactive, thoughtful and aware of their workforce, Alam said. Collecting employee data and initiating discussions around supporting employees can be an important step. Also, educating themselves on cultural days of significance for those in their workforce can go a long way to easing the process for those wishing to access support.
However, accommodations are a two-way street, she stressed.
“Both employer and employee have to work together to come up with a reasonable accommodation, but the bar is quite high for employers. In order to deny a certain accommodation, they have to state it's at the point of undue hardship, and undue hardship is a very high bar,” Alam said.
“You want to ensure that accommodation is based off the same principles of equity and inclusion, including everyone in the workplace. For example, two paid [days off] that everyone gets, that they can use – that creates more equality in the workplace. … is an example of not creating more rights for some and less rights for others.”