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 September 27, 2011 by Donna Seale
I have technology on the brain these days.
My summer ended with a bang and my fall began with a boom as a result of receiving an avalanche of requests by organizations to conduct investigations for them into workplace human rights complaints. Honestly, I’ve had so many requests for investigation work that it made me wonder whether the summer heat we’ve had in Manitoba this year had an effect on people in ways I never imagined.
But, what in the world does this have to do with technology?
Well, virtually every single complaint that has crossed my desk in the last month and a half has a technology angle to it. Either there are e-mails that form the basis of the complaint or someone was complaining about comments made on a blog, Facebook or Twitter or text messages served to be the chosen avenue for inappropriate comments and discussions.
Now, fortunately, I’m a bit of a techno-geek. I’m always reading about the latest technology companies are pushing us to use. I use cloud-based technology to improve my efficiencies and enhance the level of service I’m able to provide to those who hire me. I’m heavily engaged (well, when I’m not conducting workplace investigations, that is) working on my blog and I maintain a LinkedIn, Facebook and Twitter account to connect with my clients and those generally interested in what I have to say on the topic of workplace human rights. As a solo practitioner I’ve spent a good many hours acting as my own IT department. I’m also a mom of twins who works from home and sometimes has to rely on the good graces of pre-teen and teenage sitters who only “speak” to me via text to coordinate child care scheduling. So, I think I’m pretty immersed in this new world of ever-changing and ever-increasing technology that we now live in (check out this post by Nicole Black to get a true sense of just how much the world has changed from a technology perspective in the past few years). And this self-immersion in technology is fortunate given the pattern I see forming in the complaints I’m being asked to investigate — the pattern of technology being used as the vehicle through which people are being allegedly subjected to discrimination or harassment.
The reason my understanding of technology is a fortunate thing for me is because, as a person often called in to conduct investigations into complaints involving the use of technology, I have good insight into the kinds of questions I need to ask to get at the information I need in order to determine whether discrimination or harassment has occurred using that technology. Is your blog private or public? Is your Facebook profile open for all to see or have you established your settings to limit who has access to what you post? Did you make that comment on your Facebook wall or was it in a direct message? What’s your Twitter ‘handle’? Did you @ message that tweet or was it a generalized publication to the twitterverse? Were those text messages tampered with or is what I’m seeing just split messaging?
And these are just examples of initial questions. The answers given will likely lead to more questions. You may need to have a gander at the publicly accessible accounts or you may need to determine if you have authority to request access to those accounts. But, if you then do gain access, do you know how to interpret what you’re seeing? If you happen to be fortunate to work for an organization that has an IT department, don’t think for a moment that what I’m saying does not apply to you. The IT people might be able to extract information for you but you still need to direct them as to what you’re looking for and you still need to be able to examine, understand and interpret the information you’ve gained access to in order to determine how it fits into your investigation and what you can conclude from it.
All of this got me to thinking. Well, aside from the fact that I realize I now speak in a language that results in many people looking at me strangely. How in the world could I possibly investigate these complaints if I did not have this insight into the operation of the technology being used? Frankly, I do not think I would be capable of exhaustively examining the circumstances that form the basis of the complaint. And that would likely have an impact on the conclusions I reach on the evidence.
And, then this got me to thinking again. (Yes, I’m in a reflective phase at the moment. Just chalk it up to the after-shock of the volume of complaints I’ve been contending with of late. Well, either that or the summer heat has gotten to me too). How in the world would people like those of you reading this blog and who may well be responsible for conducting investigations internal to your organizations handle these technology-laden situations if you did not have this same technology background I do? In all honesty, I think you would be tremendously disadvantaged in the investigation process. Your ability to ask the ‘right’ questions and get at the best information would be hampered. And any time you are hampered in how you can conduct your investigation the overall quality of the evidence you ultimately gather is weakened. And weak evidence leads to poor conclusions. And poor conclusions lead to bad decisions. Bad decisions lead to liability. And you know I don’t want that for you!
So if you do happen to find yourself investigating workplace complaints from time-to-time and you happen to be the type of person who is generally averse to using technology or you are one of those individuals who thinks that Facebook and Twitter are a complete waste of time, I’m going to ask you to strongly consider dipping your toes into these new technology waters anyway. Open up a Facebook and Twitter account. Friend some friends. Find some people to follow. Get on LinkedIn and connect with colleagues. Read a few blogs. And, not just those written by professionals (like this one) but have a gander at the ones written by Jane and Joe Public to get a real flavor for what people are saying on the internet. SMS (text) or BBM (Blackberry Messenger) your partner or spouse. Heck, text your kid even if it’s just for fun (you’ll either totally creep them out or you might actually get them to talk to you!).
See how these technologies operate in the real world.
And prepare yourself for the day you’ll be faced with your own avalanche of technology-laden complaints to investigate. Because that avalanche is coming. Even at the end of a long, hot summer.
Image above by wagg66.
Donna M. Seale B.A., LL. B.
Human Rights Lawyer
and Educator
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