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Queen's University
 

Markovic v Autocom

What is an acceptable accommodation policy?

Facts

This case concerns a religious accommodation policy written by an employer, Autocom Manufacturing Ltd., after it was accused of discrimination on the basis of creed. The complaint was filed when Autocom refused to grant for refusing to grant Markovic two days paid leave to celebrate Eastern Orthodox Christmas. Both parties agreed to have the Tribunal review the policy before proceeding with the complaint.

The policy established a procedure for seeking accommodation which required the employee to make a formal request for accommodation to the supervisor; to provide proof that the faith day required time off work; and to make the request well in advance of the faith day. The policy set forth a menu of optional accommodations for the employee, including making up lost time on a later date, working on a secular holiday, shifting shifts with a coworker, adjusting the employee’s shift schedule, using outstanding paid vacation and taking a leave of absence without pay. The employer was then required to consider whether the employee’s request and preferred option for accommodation could be granted without causing undue hardship. Employees who were dissatisfied with the proposed accommodation were advised of their right to pursue avenues of redress within the company… Markovic v Autocom Manufacturing Ltd., 2008 HRTO 64 (CanLII)

Arguments

The Ontario Human Rights Commission argued that the policy was discriminatory because

  • Making up time as the default for accommodating Code-related needs does not achieve equality of outcome. If employees are required to make up time, in essence they are accommodating themselves, with the employer only being required to be flexible to allow this.   

  • Non-Western Christians have to engage in a process of negotiating their entitlement to their days of observances rather than having it automatically recognized. This may require them to unnecessarily and uncomfortably delve into their personal circumstances.

  • Western Christians are able to plan their daily lives without being concerned with alternating work schedules and working extra time ad are not faced with practical considerations such as childcare arrangements and transportation issues.  

  • Negotiating accommodation has an impact on human dignity for persons of minority faiths not experienced by those belonging to the majority religion

  • It is inconsistent with the notion of universal and inclusive design … to require re-arranging work schedules as a first option  

Autocom's arguments in favor of the policy...

  • Christmas day and Good Friday have become secular holidays.  Therefore, a work calendar based on Western Christian practices is not prima facie discriminatory.

  • Such a work calendar can,  however, have a discriminatory effect on persons whose faith dates do not fall on these secular holidays.  This discriminatory effect arises when the employer does not accommodate the employee who seeks time off to observe a faith date.

  • Recent case law indicates that an employer fills its obligation to accommodate religious observances when it provides a menu of options for time off.  

  • The process of negotiating time off for religious observances is not an unfair burden, but an appropriate mechanism which respects the right of employees to individualized accommodation

  • Chambly does not required paid leave for religious observance  

Question

Was the proposed policy appropriate and consistent with the Code?

Answer

Yes

Reason

The Tribunal ruled that the policy, which provided a menu of options for scheduling changes, was appropriate and consistent with the Code and the jurisprudence even though it did not include the option of getting two days paid leave. 

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. (para 47)

After doing a review of relevant cases, the tribunal made the following conclusions about arguments raised by both parties:

Conclusions

1.       Christmas Day and Good Friday have become secular pause days. The schedule of work based on these holidays is secular in nature and non-discriminatory on its face.  

2.       The schedule of work can be seen as discriminatory in its effect because it allows observant Western Christians to celebrate two important faith days but requires observant employees of other faiths to work on their most important faith days.

3.       All employees, however, are given two paid holidays.  The Commission’s “equality of outcome” standard is therefore not helpful. Since all employees are given paid holidays, the only difference in treatment is time off to observe religious days.

4.       Since the discriminatory effect arises only from a conflict with the work schedule (and not with the provision of paid pause days) the solution should involve a search for ways to modify the work schedule in order to enable time off.

5.        The provision of options for scheduling changes without loss of pay…

         a.       satisfies the employer’s duty to accommodate

         b.      is consistent with principles established by the Supreme Court                                                               

                  i.      in Hydro-Québec (2008) which demonstrated that the duty to accommodate does not trump, but rather co-exists with, the employment contract (the duty to provide services for pay); and                                                              

                         ii.      in McGill University Health Centre (2008) which underscored the importance of individualized accommodation and autonomy of choice in the accommodation process; and                                                             

                 iii.      in Chambly (1994) which did not establish as a general principle that employers must pay employees for time off for religious observances. In Chambly, the employer was required to provide two paid days to the employee because 1) the work schedule (at a high school) was inflexible 2) the Collective Agreement allowed for three days of paid special leave that had historically been used for religious accommodations.  

6.       A menu of options does not impose an unnecessary and unfair burden on employees by obliging them engage in dialogue and negotiation with the employer (this is the very nature of the accommodation process)  

Kingston, Ontario, Canada. K7L 3N6. 613.533.2000