A small vegetable and herb business in Ontario recently ran afoul of the Ontario Human Rights Code (“Code”) because it blindly adhered to its attendance policy and failed to consider any alternatives to an employee’s request for a day off work to observe a religious holiday because it interfered with its business demands. The Ontario Human Rights Tribunal’s (“OHRT”) decision in H.T. v. ES Holdings Inc. o/a Country Herbs, 2015 HRTO 1067, is a reminder to small and large business alike to use a thoughtful analysis in meeting both the “procedural” and “substantive” duty to accommodate the legitimate religious needs of their employees.
In this case, Country Herbs operated a small vegetable and herb business that supplied vegetables and herbs to customers in Toronto. Country Herbs busiest days were Monday to replenish stock from the prior weekend and Thursdays to stock for the upcoming weekend. Country Herbs has 23 employees and the vast majority of them were of Mennonites.
HT was 17 years old had worked for Country Herbs for over a year on full time hours and her little brother JT had just started working for the business on a part-time basis. HT and JT were both observant Mennonites and this case centers around their request to have a Thursday off work so that they could observe the holiday of Himmilfaurt on May 29, 2014.
HT had requested May 29 off of work to observe Himmilfaurt and JT was not scheduled to work that day. However, 11 of Country Herbs 23 staff had already requested the day off and Country Herb had been advised by the Ministry of Labour that they did not have to give the day off work because it was not a “statutory holiday” (although the Ministry presumably did not comment on the human rights aspects). Consequently, Country Herb refused to let HT have the day off and said that if she could not work that day, she could come in at 12 a.m. and work her shift then. These were the only two options Country Herbs would consider. HT advised Country Herbs she could not work that day and she could not work at midnight because it was too late, not safe and she did not have a ride to get to farm.
HT failed to attend work on May 29, 2014, and was terminated. Country Herbs also terminated JT.
The issue before the HRTO was whether HT was discriminated against on the basis of “creed” contrary to section 5 of the Ontario Human Rights Code and reprised against for exercising her rights and whether JT was terminated on the basis of association with HT (i.e. because he was HT’s little brother).
The OHRT made the following findings:
- HT made out a prima facie case of discrimination because she was forced to either work on a religious holiday or be fired for discriminatory reasons.
- Country Herbs failed to consider the procedural duty to accommodate by failing to engage in any meaningful analysis of how to accommodate HT in some other manner which would allow her the day off work and allow her to make up the time in some other way.
- Country Herbs failed in the substantive duty to accommodate by offering no alternative other than working at midnight which was unreasonable given HT’s age.
- The sole reason that JT was fired was because of his sister HT and therefore he was fired on the basis of association.
- HT had been reprised against for exercising her rights in requesting the day off work in the first place.
The OHRT ordered Country Herb to pay HT $10,000 for injury to dignity, lost wages and interest and they were ordered to pay JT $7,500 injury to dignity, lost wages and interest.
This case clear shows employers that despite business demands, they must take meaningful steps to determine if the religious needs of their employees can be accommodated to meet both the procedural and substantive duty to accommodate. A failure to do so can result in costly damage awards.
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