Merry Christmas! Wait. What? Can we still say that in public? Why yes, we can, but not at the cost of excluding all other religions in the workplace.
For those that do not celebrate Christian holidays (and/or secular commercial holidays derived from Christian traditions), focusing only on Christian traditions can feel like exclusion.
It’s hard to feel like you belong if you don’t share similar traditions. Taken too far, and the exclusion can evolve into religious discrimination, giving rise to religious accommodation obligations.
Religious accommodation can be tricky, particularly where an employer may not be aware of the religious practices of the religion practiced by an employee. For example, if one of my employees came to me, told me they practiced the religion Klingon and required certain days off would I have to let them? What makes a religion a religion such that an employer must accommodate an employee’s religious practices?
Creed Under the Human Rights Code
The Ontario Human Rights Code prohibits discrimination or adverse treatment with respect to religion or “creed.” This could look like refusing to make an exception to dress code requirements or refusing to recognize religious dress requirements, refusing to allow employees to observe periods of prayer at particular times of the day or refusing to allow employees time off to observe religious holidays.
So back to my Klingon question, do I have to allow my Star Trek worshiping employee the day off or face a religious discrimination complaint?
What Constitutes a Religion?
According to the Ontario Human Rights Commission a religion “includes the practices, beliefs and observances that are part of a faith or religion” and “[i]t does not include personal moral, ethical or political views.” The Code also does not provide protection for beliefs “that promote violence or hate towards others, or that violate criminal law.”
Creed in the Case Law
In R.C. (Next friend of) v. District School Board of Niagara, the Ontario Human Rights Tribunal determined that atheism is a creed deserving of protection under the Code. The Tribunal looked at the Supreme Court’s comments, and definition of religion under s.2(a) of the Canadian Charter of Rights and Freedoms, in Syndicat Northwest v. Amselem. In Syndicat the Court stated that:
“In essence, religion is about freely and deeply held personal convictions or beliefs connected to an individual’s spiritual faith and integrally linked to one’s self-definition and spiritual fulfilment, the practices of which allow the individuals to foster a connection with the divine or with the subject or object of that spiritual faith.”
While atheism refutes, as opposed to fosters, a connection with the divine, the Tribunal also considered international human rights law, particularly Article 18(1) of the International Covenant on Civil and Political Rights, to which Canada is a ratifying party.
Section 18(1) of the International Covenant on Civil and Political Rights reads:
“Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.”
This has been interpreted to include protection for theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief. As stated by Article 2 of the 1993 General Comment on this article by The Office of the High Commissioner for Human Rights, General Comment No. 22, UN Doc. CCPC/C/21/Rev.1/Add/4L, “[t]he terms ‘belief’ and ‘religion’ are to be broadly construed,” and “Article 18 is not limited in its application to traditional religions or to religions and beliefs with institutional characteristics or practices analogous to those of traditional religions.”
The Tribunal determined that it is appropriate to take “a liberal and purposive interpretation of the prohibition on discrimination because of ‘creed’” and to include the prohibition on discrimination because a person is an atheist.
Falun Gong ✔
The Tribunal applied similar reasoning in Huang v. 1233065 Ontario Inc. (Ontario Senior Chinese Cultural Assn.) (c.o.b. Ottawa Chinese Senior Assn.) in determining that Falun Gong is a creed. Beliefs of this practice include that people may be possessed by animals, that the founder of Falun Gong possessed paranormal abilities and that there is a rotating wheel in the stomach. The Tribunal held that it was not for the Tribunal to determine whether or not a belief systems is reasonable, would withstand scientific scrutiny or whether its beliefs are consistent with Charter values.
The takeaway? The Tribunal is likely to interpret the question of what is a creed broadly. Employers should take requests for religious accommodation seriously, even where an employee professes to be a member of a religion (or non-religion) the employer didn’t know existed.
For those of you that do celebrate Christmas, have a wonderful holiday season and all the best in 2018.
(And for those that celebrate both Christmas and Star Trek, here’s our favourite TNG Christmas Carol)