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A few years ago, law firm Stikeman Elliott in Toronto tried to accommodate law students and lawyers who prayed during work hours. Locks were installed on office doors and those without offices were given offices for privacy.
But it became an administrative and logistical challenge as people moved around, so the firm decided to provide a refection room instead. Luckily, there was unused space that could be converted with a coffee table, a couple of comfortable chairs, non-denominational art on the walls and a cupboard to store prayer mats. A sign was also put up indicating which wall faces east.
The room is always open, to every employee, and is used on a drop-in basis for any reason, such as quiet contemplation, says Ritu Bhasin, director of student and associate programs at the firm, which does not monitor the room’s popularity.
“What is more important than numbers is the fact it exists, it is available,” she says. “It sends a message to our people that we are committed to making the environment be as supportive and inclusive as possible and we do understand people have beliefs that aren’t outside of work hours, that are incorporated into their being throughout the day and we want to be able to facilitate that.”
Stikeman Elliott also provides a washing basin in a private bathroom that can be used to perform ablutions. And the accommodation extends to mealtimes and gatherings, as foods are offered that adhere to dietary or religious needs, such as presenting pork on a separate plate or ordering kosher meals.
“Religious and cultural diversity is something we actually work on quite a bit,” says Bhasin. “Over the last several years, as our lawyer and student group has become increasingly more diverse, we have had, first of all, to be proactive in making sure that we have people management strategies that reflect the diversity. But also, in dialoguing with our students and lawyers, we are able to learn about other things we could be working on.”
Canadian workplaces were designed for able-bodied, white males with an Anglo Saxon, Christian background who took time off to celebrate Christmas or Easter, says Sandeep Tatla, founder and managing principle at Tatla Diversity Group in Mississauga, Ont.
“Workplaces really haven’t been designed for these people coming in with very different religious holidays, religious needs,” she says.
But the demographics and diversity of the workplace are changing and Canada will rely more heavily on immigrant labour to fulfill work demands, particularly from Asia and the Middle East where there is more religious diversity.
“There’s the non-dominant religions present: Islam, Hinduism, Sikhism, Buddhism, Jainism, a bunch of different faiths. They were present in our workplaces before but they’re going to be present in our workplaces in a much more significant number,” she says. “That’s why it’s coming to the forefront of being addressed.”
A good employer will understand the workplace is going to be diverse and the best candidates aren’t always going to be from the once dominant groups, which don’t have the same norms and customs, she says. And there could even be greater productivity as employees provided with accommodation such as a reflection room don’t require as much time off to observe.
“I always liken it to… when we first started dealing with issues of disability in the workplace, people didn’t understand them. Now it just goes without saying,” says Tatla. “That’s hopefully where we’ll be with religious accommodation in the next little while.”
Religion is not yet a huge area of request for accommodation — compared to family status and disability — but down the road, there will be a significant shift in the workplace with more requests for recognition beyond the Christian-based holidays, says Donna Seale, a human rights lawyer and educator based in Oakbank, Man.
“That’s going to be something that employers are going to see more and more because our population is certainly changing, not only in terms of aging population but our immigration is primarily coming from areas like Asia now and the Middle East and they’re typically younger people.”
KPMG’s reflection room an ‘easy sell’
A couple of years ago, KPMG was asked to put in a reflection room by some Muslim employees who wanted to have a space where they could pray during the day. Previously they had to travel 20 minutes for five minutes of prayer, “so it was a pretty easy sell,” says Michael Bach, Toronto-based director of diversity, equity and inclusion at the audit, tax and advisory firm.
KPMG is just completing its first religious accommodation policy.
“We’re a big organization and we didn’t want to find that there were things happening differently across the country in different offices,” he says. “We wanted everyone who would be potentially affected to know where the firm stood on it.”
The reflection rooms are now in several offices across the country and can be booked through Microsoft Outlook. The space is not monitored, for privacy reasons, and people can use it as they see fit. The rooms are busier during larger high holidays, such as Ramadan, and there is a Muslim group that meets at several of the offices three times a day, he says.
“We’re getting good enough usage that can I justify it to the leadership,” says Bach. “It’s not just about usage — it’s about the symbolism of it.”
Most employees at KPMG don’t work a traditional 40-hour workweek, so giving someone one half-hour in the middle of the day can make them far more engaged in their work, especially if they don’t have to hide it, he says.
“It’s always been about accommodating and engaging our people, attracting and retaining the best and the brightest. We want everyone to come to work and feel they can do their job,” says Bach. “So if we can do something as simple as providing a reflection room, it’s really simple — then our people are more engaged, therefore, they’re more productive.”
After the interfaith rooms were publicized, an employee suggested a Christian prayer group be started.
“I fully supported that,” he says. “There is a population of Christians who take their faith far more seriously than those who go to church on Sunday. It’s important for them to have that outlet and it’s important for the firm to support it.”
The most common requests for accommodation fall into two categories, one being scheduling-related issues to participate in a faith-based holiday or activity that doesn’t necessarily coincide with Christian-based days off, and time off during the workday itself for things such as prayer.
Lack of awareness
leads to conflict
Conflict that arises between an employee and employer around this issue is often due to a lack of awareness, says Tatla. But two years ago, the law in Ontario was clarified on the duty to pay for time off for religious holidays, so there have been fewer disputes.
“The challenges really are more practical, just a misunderstanding, not understanding the duty of employers and the responsibility of employees, when it comes to accommodation,” she says.
Employers should pause, reflect and then respond, says Seale, and seek input from workers.
“The conflict arises always when the employer responds in a knee-jerk fashion. In this area in particular, that seems to happen more and more often because we lack understanding of the requirements of others’ religion,” she says. “It may sound like this enormous issue for you but (the employees) might have a very simple solution and the scheduling issue that seemed so enormous before now seems very insignificant in the big picture.”
Employers need to take a more proactive approach and try to make rules as inclusive as possible, says Seale, citing a 2009 case in which a Muslim security guard in training requested one hour off each Friday to pray. The company had plenty of shifts available but, instead, ceased his training and said he would not be hired. A court decided he should be awarded $5,000 in general damages and $2,500 in lost wages.
“If (the employer) had stepped back and reflected, they could easily accommodate his requests,” she says. “They didn’t, they hadn’t really taken the time to look at his request and they couldn’t even prove that they had even come close to an undue hardship argument.”
Beyond that, employers need to communicate what is involved because other employees may see it as unfair some people get to leave at certain times of the day or reschedule breaks. Employers struggle at times because other employees may question why a reflection room cannot also be used for fitness classes, for example.
“So you have to really clearly let employers know, ‘You don’t know when a person’s religious observance may occur,’” says Tatla.
Any concern around abuse of the provision is a misguided fear, and if this approach is managed appropriately, employees shouldn’t take advantage of their rights, she says.
“For the most part, most employees don’t abuse those types of things.”
TIPS FOR EMPLOYERS
Dealing with an accommodation request
The following steps will guide employers dealing with employee requests to accommodate religious observance needs in the workplace.
Put it in writing: Ensure a request for accommodation of a religious observance is in writing and it explains why accommodation is required (the nature of the sincerely held belief and nexus to religion) and what measures of accommodation are required.
Reply to the request within a reasonable time: Acknowledge the request has been received and management is reviewing it. Also, confirm the organization’s general commitment to accommodation, provide an outline of the process for dealing with the request and a time frame for a final decision — and deal in good faith and respect the dignity of the employee making the request.
If needed, request further information from the employee: Seek clarification or further details to investigate the employee’s need for accommodation to determine the legitimacy of the request or determine an adequate scope of accommodation.
Assess the need for accommodation — dress code, scheduling, religious leave — based on the religious observance needs of the employee: There are a few questions to answer here, such as: What is the exact nature of the religious observance? What religious holy day(s) is the employee requesting off? Are there health and safety factors involved? How does the request conflict with the regular work schedule? What measures can be taken to accommodate the person?
Consult with stakeholders: Talk with all relevant parties during the accommodation assessment process (such as the employee and union, if applicable).
Denying accommodation
If accommodation is not possible because of undue hardship, explain this clearly to the person concerned. Make sure the details are provided in writing and be aware the employee may request details of the cost of accommodation if undue hardship is the reason for denial of accommodation.
(c) Copyright Thomson Reuters Canada Ltd., July 12, 2010 issue, Toronto, Ontario. 1-800-387-5164. Web:www.hrreporter.com
The Ontario Human Rights Commission contended that the Policy was insufficient in that it failed to provide employees with an option of taking up to two days of paid leave for religious observance (initially the Commission took the position that Policy ought to provide employees with the two paid days as a first-instance option unless the company could show undue hardship but they backed away from that at the hearing). In the Commission's view, a work calendar that paid employees for not working on Christmas and Good Friday, but not for other religious holidays, had a discriminatory impact on members of non-Western Christian (ie. minority) faiths. The Commission also took the position that the menu of options approach in Autocom's Policy imposed an unfair burden on employees who wished to take time off for religious observances as it, in effect, required them to negotiate with the employer for time off rather than simply having time off provided to them such as in the case of Western Christians (who were given Good Friday and Christmas off, with pay, without such negotiation).
Noting that Autocom's Policy provided a process for employees to arrange for time off for religious observances through a range of options, including scheduling changes, without loss of pay, Adjudicator Sherry Liang concluded that the Policy satisfied legal requirements. Of particular interest, are the following remarks and findings made by Adjudicator Liang:
The Autocom decision is a useful one for employers. It certainly sheds light on what is required of employers in regards to the accommodation of religious observances in the workplace. But, it also illustrates the impact recent Supreme Court of Canada jurisprudence may have for employers now and in the future with the clarification of the balance to be struck between the duty to accommodate and the essential aspects of a contract of employment. As noted by Adjudicator Liang:
