Religion and politics – dangerous topics for employers
Can an employer ask an employee or job candidate about his or her religious beliefs? Most employers know, or should know, that they should never ask questions on an application or during an interview in regards to any of the protected grounds of the various human rights codes. To do so could lead to discrimination (or the perception of discrimination) on the basis of a protected ground. As with everything in law and policy, however, the above advice does not reflect the whole story. And the answer, as usual, is yes and no.
Most human rights codes allow some exception to the prohibition against discrimination if such discrimination is based on a bona fide occupational requirement (also referred to as bona fide occupational qualification, good faith occupational qualification and genuine occupational qualification). Ontario, Nova Scotia, Prince Edward Island and Saskatchewan also have specific exceptions for religious organizations under specific circumstances. So, in very exceptional cases, where the bona fide occupational requirement was to have particular religious experience, the answer may be yes.
Employers may also have a good faith interest in accommodating employees and wish to proactively discuss such need for accommodation. Can an employer ask about an employee’s religion in these circumstances?
The Supreme Court of the United States has recently heard arguments (but has yet to issue its decision) in the Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc. (11-5110) which partly addresses the above question. In the Abercrombie case a job applicant who wears hijab was denied a job offer, arguably because she wore hijab which did not fit with the company’s dress code. The issue being considered by the court is whether the employer had a duty to accommodate the applicant’s religious beliefs despite the fact that she had not asked for an accommodation, nor directly given the employer direct, explicit notice that she wore hijab for religious purposes nor that accommodation was required.
The employer in this case appears to be concerned that if the applicant is not required to give notice in order to trigger the duty to accommodate, how can an employer discuss accommodation without crossing the line asking about prohibited grounds? Fair question.
Early remarks from the court appear to support the argument that employers do have a duty to not discriminate, directly or indirectly, and that there are ways for an employer to prompt a discussion about accommodation by asking the employee applicant if he or she can fulfill the bona fide requirements of the job, be they physical, dress code, attendance or any other demand that is part of the requirements of the job. In the Abercrombie case, the Justices suggested that the employer simply had to present the dress code policy to the candidate and inquire if the candidate had any problems with it. If an employee cannot fulfill the requirements of the job, or if a prima facie neutral policy has a discriminatory effect because of religious or other protected ground, it is then incumbent on him or her to request an accommodation and incumbent upon the employer to deal with the request in good faith an offer alternatives to the employee/applicant to point of undue hardship.
Refer to the topic – E5.09 — Religious Accommodation in the Human Resources PolicyPro published by First Reference Inc.
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