Published on April 17, 2012 by Donna Seale
Currently in the UK, there is a firestorm brewing over whether employees who are Christian should be able to wear crosses in the workplace. As noted in a recent Daily Mail Online article, the British government is, interestingly, intending to take a position before the European Court of Human Rights that supports the ban by some employers of the wearing of the crucifix. For a good summary of the case of one employee, Nadia Eweida, who has been in a years-long battle over being disciplined for refusing to remove the cross she was wearing while working for British Airways, have a look at Yosie St. Cyr’s post at the First Reference Talks Blog called “Banning the right to wear a cross at work”.
I was recently interviewed by the Canadian HR Reporter on this very issue. In particular, I was asked about how human rights law in Canada would look at the issue of religious symbols in the workplace. The Canadian HR Reporter kindly gave me permission to reproduce their article “Bearing crosses in the workplace”, which you will find below:
Bearing crosses in the workplace
U.K. moves to ban religious symbols but employers should accommodate them: Experts
By Amanda Silliker
The British government is set to argue in a landmark court case that Christians do not have the right to openly wear a cross at work. The government will argue that because it is not a requirement of the Christian faith, employers can “ban the wearing of the cross and sack workers who insist on doing so,” according to a March article in the Telegraph.
The United Kingdom will present its position at the European Court in Strasbourg, France, where judges will hear a test case on religious freedom later this year. It will bring together four separate cases including that of Nadia Eweida, a British Airways employee who was suspended in 2006 for refusing to take off her cross, which the airline claimed breached its uniform code.
“What we are about is self-definition and whether a cross is a requirement or not, it’s a symbol by which people choose to define themselves as Christian,” said Rev. Karen Hamilton, general secretary of the Canadian Council of Churches in Toronto.
“So, it is incomprehensible to me that that should be seen as a problem because someone chooses to visually define themselves as Christian,”
The Canadian Human Rights Act and similar provincial human rights codes state an employer has a duty to accommodate a worker’s religion up to the point of undue hardship.
“Generally, employers are entitled to maintain and enforce dress code but if it comes into conflict with a human rights ground, like religion, (for example) if there was a no- jewelry rule in the workplace that would cause conflict with someone who wears a crucifix as part of their religious dress and that rule, if it was applied inflexibly, could result in indirect discrimination,” said Donna Seale, a human rights lawyer in Oakbank, Man.
For an employer to be able to validate a no-jewelry rule from a human rights perspective, it would have to show it was a necessary part of the job and changing it would result in undue hardship to the business, she said. In this context, employers often raise health and safety issues.
“I could see a no-jewelry rule being upheld in a factory environment where if someone was wearing a cross and it could get stuck in machinery and their lives — and other lives around them — could be put at risk,” said Seale.
When considering the impact of an accommodation on health and safety, employers must look at the extent of the risk and identify who would bear that risk, according to the Canadian Human Rights Commission. If this risk is borne entirely by the employee, then a higher degree of risk is acceptable. For example, an employee who wears a turban may be excused from wearing a hard hat in the workplace because the risk is the employee’s alone, said the commission.
Aside from crosses, there are many religious symbols employers may encounter, including: a yarmulke for Jewish employees, mostly men; a niqab (face covering) or hijab (headscarf) for Muslim women; or a turban or kirpan (ceremonial sword) for Sikh men.
An employer’s dress code policy should be applied flexibly and make it clear the employer will give consideration to the religious requirements of employees, said Seale.
Employers also need to accept some employees are not going to be OK with the accommodations, said Stephen Hammond, a workplace human rights consultant in Victoria.
“Just accept that not everyone’s going to buy into it. You know these things are going to be controversial, not everyone’s going to agree with it, but sometimes you just have to say, ‘Let’s agree to disagree but the Supreme Court of Canada is pretty firm on this, so we can’t be violating someone’s rights.’”
To minimize potential backlash, employers need to educate employees that people requesting an accommodation are simply asserting their legal rights, said Hammond. Other employees may see it as special treatment but employers should explain it’s permitted.
“That person is being allowed to have some religious symbols that you don’t think are right in the workplace (but) it’s not your responsibility,” he said. “Just leave that person alone — don’t harass them, don’t bug them, don’t give them a hard time about it — they’re just asserting their rights.”
If employers do not accommodate religious symbols in the workplace, they open themselves up to human rights complaints, which can take up a lot of time and energy, said Seale. If an employer is unable to accommodate an employee’s request, it should clearly explain its decision to the employee.
“Oftentimes, it’s that lack of explanation that causes the employee to feel they have no choice but to make a complaint to an external body (because) employers will simply say, ‘That’s our rule, we can’t change it,’ but they don’t elaborate and say why,” said Seale. “Then, people feel that their rights are being infringed just because.”
An employer’s reputation may also be at stake if the employee takes his concerns externally or the story is picked up by the media.
“The impact of that is they might have an (individual) who might be in that particular faith background who now says, ‘I don’t want to apply for a job with that employer’ or ‘I don’t want to buy services from that particular business,’” said Seale. “Any employer would want to avoid any kind of negative publicity around issues like this.”
And employers are not taking employees seriously if their religious beliefs are not taken into account, said Hamilton. Employers need to realize people always bring their background and heritage with them — and that is a benefit to the business.
“Surely, the more we know about ourselves and the world and those we work with, the better we are able to work as a team,” she said. “The attempt is being made to know more about each other but to leave people’s deeply held faith traditions out of that equation is very artificial.”
RELIGION AT WORK
Quebec report on religious symbols
In 2008, the Quebec government appointed the Consultation Commission on Accommodation Practices Related to Cultural Differences, co-chaired by Gérard Bouchard and Charles Taylor. It released a controversial report — Building the Future: A Time for Reconciliation — that outlined 37 recommendations.
With regard to government employees wearing religious symbols, the report recommended judges, Crown prosecutors, police officers and prison guards be prohibited from doing so while teachers, public servants, health professionals and all other government employees be authorized to do so.
Most of the report’s recommendations were ignored by Premier Jean Charest’s government.
So – what do you think about this issue? Do you think the European Human Rights Court will permit a ban on the cross in the workplace? If so, do you think that is right? Should we be weighing into whether a cross is or isn’t a specific religious requirement for people who are Christian? Alternatively, should we be weighing into an individual’s personal interpretation of what their religion requires? As always, I’m interested to hear what you have to say!
Published on December 20, 2011 by Donna Seale
Back in September, Professor David Doorey of York University drew to my attention an op-ed piece that appeared in the Winnipeg Free Press and which was written by a colleague of his, Professor Ravi Malhotra of the University of Ottawa Law School. Professor Malhotra was commenting on his discovery that employment standards legislation in Manitoba, Alberta and Saskatchewan contain provisions that permit employers to pay employees with disabilities less than the minimum wage. Professor Malhotra focused much of his opinion on the Manitoba provisions which provide as follows:
“85(1) Despite Division 1 of Part 2 and subject to the regulations, if the director [of Employment Standards] is satisfied that a proposed employment arrangement between an employer and an employee who has a mental or physical disability is satisfactory for both of them, the director may, on application by the employer in a form acceptable to the director, issue a permit
(a)authorizing the employer to pay the employee a wage that is less than the minimum wage; and
(b) authorizing the employee to receive less than the minimum wage.”
Professor Malhotra raises serious concerns over the fact that provisions such as section 85 even exist in this day and age. He argues that such provisions are blatantly discriminatory against persons with disabilities and promulgate the notion that employees with disabilities are less worthy of recognition for the value they contribute to the workplace than their non-disabled counterparts. He urges the provincial governments in Manitoba, Alberta and Saskatchewan to remove these offensive provisions.
I fully agree with what Professor Malhotra is saying. But, does that mean I think the provision in Manitoba’s legislation should be immediately repealed?
In a word…..No.
Before you scratch your head too hard, yes, I did say what I just said. I do not believe that the Manitoba government should do away with section 85(1) outright. But, that is not because I maintain any belief whatsoever that employers should be permitted to pay employees with disabilities less than minimum wage. Instead, I believe that section 85(1) needs to remain, for now at least, to prop up the very inequities it created. For, as is often the case when discriminatory systems have been set up by governments and those systems are left to become entrenched, a tangled web often results which makes eventual removal of that system easier on paper than it is in practice. [One needs only look at the Indian Act for insight on this point].
Over the course of my career, I have had the opportunity to work with Manitoba’s Departments of Family Services and Employment Standards. I have also accumulated at least a bit of knowledge about the various systems impacting persons with disabilities in this province given my personal experiences as an advocate for my sister who has both physical and intellectual disabilities. As a result, there are some things I am aware of underlying the creation of section 85(1), its operation to date and the reasons behind its continued existence that I thought would be useful to share for the purposes of this discussion.
As I understand its genesis, section 85(1) was placed into Manitoba’s Employment Standards Code to provide the province with a tool to encourage employers to hire people with disabilities.
In terms of how permits came to be issued, my understanding of the process followed by the Director of Employment Standards is that he has always relied on recommendations from the Vocational Services division of Family Services before granting a section 85(1) permit to an employer. Vocational Services workers are individuals who work closely with persons with disabilities who fall under legislation that Family Services is responsible for administering in order to assist those persons attain employment. Back when section 85(1) came into being, if a Vocational Services worker found a job for a person with a disability the worker would assess the person with a disability in order to determine his or her abilities to do the job relative to a person who was not disabled. For example, if, based on that assessment, it was determined that the person with a disability could only perform 50% of the tasks that the employer required of a particular job compared to a person who was not disabled, the worker would make a recommendation to the Director of Employment Standards that the employer ought to be permitted to pay the person with the disability a wage that reflected what the person was able to do. In the example I’ve cited, the person with the disability would be paid 50% of the minimum wage, with government approval.
My understanding is that there are currently a total of 21 employers in the Province who actively hold permits under section 85(1) which allows them to employ individuals with disabilities and pay them less than minimum wage. This is a significantly lower figure than the approximately 300 active permits that were in existence in the early 1990′s. Of these 21 permits, most of them are for employers based in rural Manitoba, where work for persons with disabilities is especially hard to come by. All of these permits relate to individuals with intellectual disabilities. I also understand that the individuals for whom these permits have been issued have been with the same employer for upwards of 20 years.
Over the years since section 85(1) was included in the Manitoba legislation, concerns have been raised by the disability community. Concerns that mirror those that Professor Malhotra has outlined in his editorial. As I understand it, much talk has occurred about doing away with the section. But talk around doing away with the section has also lead to the realization that the 21 people who currently hold sub-minimum wage jobs under this section would likely lose their jobs — given they were only employed in the first place on the premise that the employer could pay the employee for the work they were ‘capable’ of performing. A sad reality, but a reality nonetheless. The employees and their families raised concerns about the removal of section 85(1) for that very reason. For them, section 85(1) represented an opportunity. An opportunity to find long-term gainful employment for themselves or their family members, albeit for less than minimum wage, where there might otherwise be none.
Also underlying section 85(1) and the ability to permit employers to pay less than minimum wage to employees with disabilities is the interconnection of that section with the provincial Employment and Income Assistance (“EIA”) legislation and other legislation that offers benefits to persons with disabilities who are low income earners (both federal and provincial in nature). In Manitoba (as presumably is the case in other provinces), individuals with disabilities who meet the EIA requirements are provided with income assistance each month. It is not a large amount of money, by any means, but it is something. Any employment income that a person who is receiving income assistance under the EIA must be reported to the province on a monthly basis as well. When the amount of employment income reaches a particular level, the person with a disability is at risk of having his or her EIA benefits cut off. They can also lose out on other programs and services. Things like dental care, to name one example. This leaves individuals with disabilities who earn any degree of income in a difficult position. Section 85(1) was seen as a way to enable persons with disabilities to be gainfully employed yet not put at risk the benefits, programs and services available to them if their income exceeded the ‘cut off line’.
So it is this very web-like system that underlies section 85(1)’s existence. And it is this web-like system that keeps it around. At least for the 21 employees currently working under sub-minimum wage permits. To my knowledge, though, Vocational Service workers are no longer requesting such permits from the Director of Employment Standards. And he is no longer issuing new ones.
While we should, perhaps, be thankful that section 85(1) remains on the books from a practical perspective for only a very small group of people, I do feel that calls for the repeal of sections like section 85(1), although justified, are, in some respects, naive. If Manitoba, Saskatchewan and Alberta removed these sections from their employment standards legislation tomorrow, would persons with disabilities, particularly those with intellectual disabilities, suddenly find themselves with minimum wage opportunities abound? Do persons with disabilities in provinces that don’t currently have sections like this find themselves gainfully employed in minimum wage positions? Leaving aside the reasons why section 85(1) appears to remain in Manitoba’s legislation, Manitoba’s experience would suggest that removing the section would not make a whole heck of a lot of difference for persons with disabilities in practice. Especially those with intellectual disabilities. Vocational service workers are still hard pressed to find employment for those they assist. Volunteer and work experience positions are certainly available but do those placements translate into actual minimum wage-paying jobs? Very rarely, I would argue. My sister’s experience is a perfect example. She has been shifted from job placement to job placement for as long as I can remember and has yet to see anything come of them. But she persists, in the hope that an employer will see her potential and her efforts and choose to hire her. Quite frankly, I know my sister would jump at the chance for a job at even sub-minimum wage rates — that is how badly she wants to feel like a contributing member of society. It’s a heartbreaking fact for a person in my line of work. (I’ve even tried to help by hiring her myself in the past but the fun of working for your sibling wears off pretty quickly, especially when you’re looking for acceptance outside the protective confines of family). And, looking beyond what I know of Manitoba’s situation, we have all heard the statistics that those with disabilities remain the largest unemployed group in Canadian society (a fact that Professor Malhotra notes in his editorial).
We should all find section 85(1) of Manitoba’s Employment Standards Code and similar sections in Saskatchewan and Alberta offensive. We should all demand that the contributions to the workplace of persons with disabilities, regardless of what their disabilities are, should be recognized by payment of at least minimum wage. But far more needs to be done to address the employment-based discrimination continually faced by individuals in Canada who are disabled than kicking those sections to the curb. Law makers, in the end, can only do so much even when they try to counter the discriminatory effects of ill-conceived systems put in place years ago with new legislation that aims to value and celebrate persons with disabilities. Ultimately, it’s employers who need to be convinced of the benefits, economic and otherwise, to employing people with disabilities. Then and only then will real change happen.
So those are my thoughts on this weighty subject. What about you? I’d be interested to hear what you have to say. And, if you happen to be an employer who provides minimum (or greater) wage opportunities to people with disabilities I’d encourage you to write in and share your perspective.
Donna M. Seale B.A., LL. B.
Human Rights Lawyer
and Educator
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