When statutory holidays are also religious holidays
Two Christian holy days (Christmas and Good Friday) are also statutory holidays.
Every year we get comments from subscribers around the Christmas and Good Friday holidays about why governments in Canada are still using these Christian religious holidays as statutory (public) holidays when they are trying to promote an image of multiculturalism. I am anticipating the same comments as Good Friday is approaching; it will occur on April 6 this year.
Courts have reviewed numerous aspects of this issue on several occasions. Let’s review some of the factors.
Following a Supreme Court decision of 1994 (Commission scolaire régionale de Chambly v. Bergevin), which ruled that requiring Jewish teachers to take unpaid leave to observe Yom Kippur did not discharge the employer’s duty to accommodate. Rather, the Court held that accommodation required the employer to provide paid leave to Jewish teachers for Yom Kippur.
In 2000, the Human Rights Commissions and tribunals started to actively require that employers recognize the ethnic diversity of workplaces (which reflects the diversity of Canadian society). The Ontario Human Rights Commission’s board of inquiry investigated ways for employers to revisit their current accommodation policies of non-Christian values.
The commission wrote a guideline titled, Policy on Creed and the Accommodation of Religious Observances. The guideline states that the duty to accommodate under the Ontario Human Rights Code requires employers to provide at least two paid leave days for employees observing their religious observances, to parallel the statutory holidays on Christmas and Good Friday.
Employers relied on this policy as an interpretation of the Code and started modelling their workplace policies on religious accommodation after this guideline. Even at the time the policy was introduced, many legal experts questioned whether it was an accurate statement of the law.
What followed was the Ontario Court of Appeal decision known as Tratnyek, in which the Court held that employers could meet the accommodation of religious observances through the use of scheduling changes without first demonstrating that paid leave would constitute an undue hardship. The tribunal held that where a schedule of work based on public holidays permits Christians to have time off to observe their religious holy days, and requires other religions to work their holy days, the schedule is discriminatory in effect and the employer has a duty to accommodate employees. However, the tribunal concluded that there was no authority supporting the proposition that employers had to give non-Christian employees two days of paid leave to mirror Christmas and Good Friday.
The Tratnyek decision made it clear that the commission’s position that at least two days of paid religious leave must be provided was no longer justifiable. However, the commission did not change the policy, and employers continued to apply the commission’s guideline by providing non-Christian employees at least two days of paid religious leave.
The commission’s guideline faced further challenges.
In Markovic v. Autocom Manufacturing Ltd. (2008), Mr. Markovic filed a discrimination complaint with the commission after his employer, Autocom Manufacturing, required him to take unpaid leave to observe Eastern Orthodox Christmas. During the proceedings, Autocom developed a religious accommodation policy that allowed employees to choose an accommodation from several options that did not include paid leave. The policy included four different scheduling options, among them the option of using outstanding paid vacation, and the option of taking a leave of absence without pay.
The commission took the position that Autocom’s proposed policy was inconsistent with the Code since it did not give employees the option of two days of paid leave for religious observances.
The parties asked the Ontario Human Rights Tribunal to determine whether Autocom’s proposed policy was consistent with the Code and the jurisprudence regarding accommodating employee requests for time off for religious holidays. In the long run, the tribunal upheld Autocom’s proposed policy, and found that there is no blanket requirement to provide—or even include on a menu of options—two days of paid religious leave.
The tribunal made the following statements that are important to note:
Although the public holidays on Christmas and Good Friday originated in Christian observances, they are now considered secular pause days. Similarly, a work schedule incorporating the public holidays covered by the Employment Standards Act (including Christmas and Good Friday) is considered secular and non-discriminatory on its face. Nevertheless, such a work schedule may have a discriminatory effect on non-Western Christian employees.
The tribunal’s vice-chair described this discriminatory effect, and the role of the duty to accommodate, as follows:
… the discriminatory effect arises from the work schedule. For non-Western Christians, the discrimination consists of the requirement to work on holy days, a requirement not imposed on Western Christians, at least with respect to Christmas and Good Friday. Following on this, the duty to accommodate … concerns the search for a solution that permits time off for religious observances, without adverse employment consequences.
She stated, “To put it simply, where the ‘problem’ is the need for time, the solution is the enabling of time.” She concluded that none of the decisions dealing with this issue “required an employer to accommodate religious observances by giving non-Western Christian employees two days of paid leave to mirror the public holidays on Christmas Day and Good Friday, short of undue hardship.” To the contrary, she agreed with Autocom that the Tratnyek decision made clear that there was no such requirement.
The tribunal was careful to note, however, that scheduling changes may not always provide reasonable accommodation and that in some circumstances, such as in Chambly, it is incumbent on the employer to explore other accommodation options.
Citing the Supreme Court of Canada decision of Meiorin, the vice-chair held:
… the obligation on the employer is to design its workplace standards in a way that recognizes differences in religion amongst its individual employees, and accommodates those differences. The task is to mesh its workplace rules with the needs of a diverse workforce, with the goal of enhancing participation and inclusion. In the case of religious observances, those goals can be met through the provision of options for scheduling changes that do not result in loss of pay.
What is the message for employers?
Employers should and can accommodate religious observances without undue hardship by providing a menu of accommodation options that does not include paid leave.
Also, the public holidays of Christmas and Good Friday should have no bearing on the efforts employers and employees make to accommodate religious observances of non-Christian employees.
First Reference Human Resources and Compliance Managing Editor