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 April 11, 2012 by Donna Seale
For those of you itching to learn something new, I’d like to make you aware of an upcoming seminar that I’m participating in addressing recent developments on the law on reasonable accommodation in the workplace. While the session is being jointly presented by the Law Society of Manitoba’s Equity Ombudsperson and the Manitoba Bar Association’s Constitutional/Human Rights Section and is generally targetted at lawyers, don’t let that hold you back from attending if you don’t happen to have a law degree in your background! I’ve had non-lawyer clients attend this annual event in the past and they have always indicated that they enjoyed the sessions and came away with valuable information, never mind insight into how lawyers approach these critical issues (worth the price of admission alone!!).
Here’s the notice about this jam-packed session scheduled to be held at the Law Society of Manitoba on May 28th:
“Accommodation in the workplace is an ever evolving area of the law. As a result, the Law Society and the Bar Association have teamed up to provide you with regular installments of this popular program reviewing current reasonable accommodation issues. This year our experienced panel of practitioners will cover the following valuable topics:
- Significant new cases in the area of reasonable accommodation;
- New flexible workplace Employment Standards legislation;
- Overview of the Manitoba Accessibility Advisory Council Act, and of major changes to the law in Ontario regarding businesses and accessibility;
- Parental leave and family status;
- Ethical issues for lawyers in human rights cases.
Register soon to ensure you don’t miss this relevant and informative session!”
Chairs:
Brenlee Carrington Trepel, Equity Ombudsperson, Law Society of Manitoba
Lisa Cupples, Justice Manitoba, Civil Legal Services
Presenters:
Aaron Berg, Justice Manitoba – Civil Legal Services
Kris Gibson, Aikins, MacAulay & Thorvaldson LLP
Grant Mitchell, Taylor McCaffrey LLP
Donna Seale, Donna M. Seale, B.A., LL.B
Cost:
$135 plus GST for lawyers
$145 plus GST for non-members
$110 plus GST for students & MBA members (includes materials and refreshments)
DOWNLOAD THE REGISTRATION FORM HERE
Manitoba Members: This program may be reported for up to 3.0 hours of eligible CPD credit hours, including .5 hour of Ethics, Practice Management or Professional Responsibility.
British Columbia & Saskatchewan Members: This program is approved for 3.0 CPD credit hours.
Ontario Members: This program can be applied towards the 9 substantive Hours of CPD required by LSUC. Accreditation for .5 Professionalism hour pending.
Hope to see you there!
Donna
Donna M. Seale B.A., LL. B.
Human Rights Lawyer
and Educator
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