Ontario (Human Rights Comm.) and O'Malley v. Simpsons-Sears Ltd.
1980-05-15
Ontario Board of Inquiry
CHRR Doc. 81-009
Mrs. Theresa O'Malley (Vincent)
Complainant
v.
Simpsons-Sears Ltd.
Respondent
Hearing Dates:
April 10 and 11, 1980
May 15, 1980
Place:
Kingston, Ontario
Before:
Edward J. Ratushny, Ontario Board of Inquiry
Appearances by:
Mr. Bob Rueter and Miss Kathleen Ward for the Ontario Human Rights Commission and the Complainant
Mr. Chris Riggs and Mr. Charles Lugesi for the Respondent
RELIGION AND CREED — hours of work and benefits reduced — DISCRIMINATION — intention to discriminate — adverse effect discrimination — BENEFITS — benefits reduced — REASONABLE ACCOMODATION — duty to accommodate short of undue hardship — BURDEN OF PROOF — onus on respondent
Summary: The Complainant's loss of full-time employee status does not contravene s. 4(1)(g) of the Code. Evidence shows the Respondent acted reasonably when for religious reasons the Complainant was no longer able to work Friday evenings and Saturdays.
DECISION
1On the 19th day of October, 1979, I was appointed a Board of Inquiry under the Ontario Human Rights Code to hear and decide the complaint made by Mrs. Theresa O'Malley that she was discriminated against with regard to the terms and conditions of her employment because of her creed contrary to section 4(1)(g) of the Code. Since filing her complaint, Mrs. O'Malley has remarried and assumed the name "Vincent". The hearing was held in Kingston on the 10th and 11th of April, 1980. Mr. Bob Rueter and Miss Kathleen Ward appeared on behalf of both the Ontario Human Rights Commission and the complainant, Mrs. Vincent. Mr. Chris Riggs and Mr. Charles Lugosi appeared on behalf of the respondent, Simpsons-Sears Limited.
2Mrs. Vincent had been employed as a full-time employee of the respondent since 1971. From August of 1975 until October of 1978, she was a sales clerk in the ladies' wear department. The evidence indicates that Mrs. Vincent's performance as an employee was fully satisfactory. Full-time sales clerks are required to work two Saturdays in a row and then receive a Saturday off. A week-day is given off during a week in which a Saturday is worked.
3Mrs. Vincent's children joined the Seventh Day Adventist Church early in 1978 and this, eventually, led to her own decision early in October to do the same. On Tuesday, October 10, she asked the Personnel Manager, Mr. Burleigh, for the following Saturday off since she was to be baptized on that day. This was arranged. She also explained that since one precept of her new religion was that the Sabbath must be observed from sunset on Friday evening until sunset on Saturday, she would no longer be available to work during that time. Mr. Burleigh suggested that she resign but she declined to do so.
4The following week, Mr. Burleigh informed her that she could no longer work on a full-time basis and she was offered a part-time position which she accepted. As a result, she lost a number of benefits available to full-time employees. As well, her hours of work were reduced drastically resulting in a reduction in pay of almost one-half.
5It was conceded by counsel for the Commission that there existed no malicious motive or intention to discriminate against Seventh Day Adventists on the part of the respondent. Similarly, counsel for the respondent conceded that the complainant's religious beliefs were held conscientiously and in good faith.
6The Ontario Human Rights Code provides that:
4(1) No person shall ...
(g) discriminate against any employee with regard to any term or condition of employment because of ... creed ... of such ... employee.
At first glance, a condition of employment requiring all employees to work on a certain day of the week would not appear to discriminate since, on its face, such a condition treats all employees equally.
7However, to look no further would permit the imposition of general conditions of employment which would have the practical result of precluding all employees of a particular minority group. For example, a requirement that all employees be clean-shaven, would have the practical consequence of requiring a follower of the Sikh religion to forego his employment or abandon a central tenet of his religion. The Ontario Human Rights Code contains no express provision to deal with this problem i.e. a general condition of employment which is apparently non-discriminatory but which, if followed. would require the employee to forego his religious observance. Nevertheless, the problem was dealt with squarely by Chairman Peter Cumming in an earlier Board of Inquiry involving the complaint of Ishar Singh.
8The lucid and detailed analysis contained in the decision in that case has been extremely valuable to this Board. However, before referring to it, consideration should be given to a more general issue which raised and argued in these proceedings.
9Counsel for the respondent argued that in order to prove a contravention of the Code, it is necessary for the Commission to establish a motivation of malice, bigotry or bad faith on the part of the respondent. Certainly, there are some situations in which motive will be relevant. For example, there is a wide range of legitimate reasons why an employee might be dismissed. If one of the reasons is a motivation of prejudice based upon colour, for example, the act of dismissal will be characterized as discriminatory under the Code. In this example, the result could only be characterized as discriminatory because of the motivation of the employer.
10In other situations, the discriminatory result may exist without any ill-will or even knowledge on the part of the employer. Here, the absence of a motive to discriminate will not justify the discriminatory consequences. As Mr. Justice D.C. McDonald stated in a recent decision of the Alberta Supreme Court: "It is the discriminatory result which is prohibited and not a discriminatory intent" (Re Attorney-General of Alberta and Gares (1976), 1976 CanLII 1116 (AB SCTD), 67 D.L.R. (3d) 635, at p. 695). This position is not as harsh to the employer as it might first seem. It is important to bear in mind the scheme of the legislation which provides for a conciliation stage whereby the discriminatory result is brought to the attention of the employer. Furthermore, the Commission is directed by section 14(1) of the statute to "endeavour to effect a settlement". In other words, there must be an informal attempt to resolve the problem before a board of inquiry is established.
11Counsel for the respondent sought to distinguish the Gares case and cited R. v. Bushnell Communications (1973), 1973 CanLII 475 (ON HCJ), 45 D.L.R. (3d) 218 (Ont. High Ct.); (1974), 1974 CanLII 559 (ON CA), 47 D.L.R. (3d) 668 (Ont. C.A.) in support of the proposition that motive was an essential ingredient of discrimination under the Code. This case involved a charge against an employer under section 110(3) of the Canada Labour Code, R.S.C. 1970, c. L-1, of dismissing an employee because of his membership in a trade union. It is true that the Court of Appeal framed the issue in the following terms: "What motivated the employer to take the action which he in fact took with respect to the employee?" However, this is simply an example falling within the first category of situations described above. In other words, unless the motivation is established, there is no discriminatory result. But this has no bearing on the second category of situations where the discriminatory result can be seen to exist quite apart from any examination of the motivation of the employer.
12To return to the general problem, there are two questions to be resolved:
(1) Assuming (as in this case) that a general employment condition is established without a discriminatory motive and for legitimate business reasons, can there be discrimination under the Ontario Human Rights Code where that condition applies equally to all employees but has the practical consequences of discriminating against one or more of those employees on a prohibited ground such as creed?
(2) If so, and if the general employment condition has such a practical consequence, how far must an employer go in accommodating the religious beliefs of such an employee in order to avoid a contravention of the Code?
13There is implicit in the second question, the suggestion that the mere fact of a discriminatory result created by such a general condition of employment is not necessarily a contravention of the Code. To take an extreme example, it would be ludicrous to suggest that a business which operated only on Saturdays could not insist that all of its employees work on that day. Such a condition might produce a discriminatory result in relation to Seventh Day Adventists but no reasonable interpretation would suggest that this could be a contravention of the Code. Thus, in the special situation of a general condition, acceptable on its face but creating a discriminatory result, the question of whether or not there is discrimination which amounts to a contravention of the Code, could only be determined by an assessment of the employer's reaction to that discriminatory result.
14The difficulty in resolving these questions is the absence of specific legislative guidance. The relevant provisions of the Code go no further than section 4(1)(g), which merely provides that no person shall "discriminate against any employee with regard to any term or condition of employment" because of the creed of such employee. Is this provision to be interpreted narrowly to permit only an examination of the terms or conditions themselves? Or does it permit a broader inquiry into the actual effect of those terms or conditions upon the religious beliefs and practices of an individual employee?
15I am of the view that the context of section 4(1)(g) clearly dictates that the broader interpretation prevail.
16The Interpretation Act, R.S.O. 1970, c. 225 provides:
- Every Act shall be deemed to be remedial, whether its immediate purport is to direct the doing of anything that the Legislature deems to be for the public good or to prevent or punish the doing of anything that it deems to be contrary to the public good, and shall accordingly receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit.
A difficulty in applying this provision is that often "the true intent, meaning and spirit" of a statue is not easy to ascertain. Such is not the case with respect to the Ontario Human Rights Code. The Preamble and section 9 state:
Whereas recognition of the inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world and is in accord with the Universal Declaration of Human Rights as proclaimed by the United Nations;
And whereas it is public policy in Ontario that every person is free and equal in dignity and rights without regard to race, creed, colour, sex, marital status, nationality, ancestry or place of origin;
- ... The Commission shall (a) forward the principle that every person is free, and equal in dignity and rights without regard to race, creed, colour, age, sex, marital status, nationality, ancestry or place of origin;
As Chairman Cumming pointed out in the Singh case, these statements suggest that Ontario, as a society, truly wishes to encourage every person to practice the faith of his or her choice. If that is the case, it must be flexible enough to accommodate the practices of persons who are exercising their religious freedom where that accommodation can reasonably be made. If section 10 of the Interpretation Act is applied in the light of the more general statements of the Code quoted above, section 4(1)(g) should be interpreted not only to prohibit conditions of employment which are discriminatory on their face but also to deal with those which have the practical result of discriminating against a particular employee on one of the prohibited grounds.
17On the other hand, it might be argued that the following principle of statutory interpretation is applicable:
... the courts have used a principle of statutory interpretation whereby the common law rights of the subject cannot be restricted by ambiguous statutes. The presumption is against the imposition of taxation or the imposition of a penalty or the taking away of common law rights unless the words of the Statute are clear. (1971) 17 McGill L.J. 437, at pp. 438–39.
The argument is that since under the Code a respondent might suffer adverse consequences, any of its provisions which are not completely unambiguous should be interpreted very restrictively.
18This argument fails to take into account the unique nature of the Ontario Human Rights Code. It is not a penal or taxation statute but a "special type of 'social purpose' Statute" for which the principle of restrictive interpretation is inappropriate. (See (1948) 26 Can. Bar Rev. 1277, at p. 1298.) Moreover, as stated earlier, it specifically provides for conciliation and settlement rather than direct prosecution.
19The Code, then, is properly interpreted as extending its prohibition to a discriminatory result flowing from a superficially non-discriminatory condition of employment. This conclusion leads directly to the second question posed earlier. Where such a discriminatory result occurs, the only way in which it can be eliminated is to change the general term or condition of employment or else make some special accommodation for the employee affected. The question is: how far is an employer required to go in accommodating the religious beliefs of such an employee in order to avoid a contravention of the Code? Such accommodation might involve either modification of the general employment condition, itself, or else the provision of some special consideration to the employee such as a transfer to other duties where the general terms or conditions which conflict with the employee's religious convictions, could be avoided.
20In the Singh case, the Board surveyed the American authorities to that time and concluded that the duty on the employer was to accommodate unless "undue hardship" would result. Moreover, according to the Chairman, once a general term or condition is shown to produce a discriminatory result, the onus should be upon the employer to demonstrate "undue hardship":
... the onus should fall upon the employer to demonstrate that he is unable to reasonably accommodate to a prospective employees' religious observance or practice without undue hardships on the conduct of his business, once a prima facie case has been established of discrimination through the application of the employer's employment regulations. (pp. 31–32)
The decision points out that casting the onus upon the employer is a desirable approach since the employer will be in the best position to explain why an undue hardship would be created.
21The Courts in the United States refuse to read into the 1964 Civil Rights Act any obligation on the part of an employer to accommodate the religious practices of an employee. In Dewey v. Reynolds Metals Company, 429 F. 2d 324 (1970), the Federal Court of Appeal stated that religious discrimination and the failure to accommodate were entirely different concepts. In 1972, partly in response to the Dewey decision, Congress amended the Act to define religion in the following manner:
The term "religion" includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business.
In effect, it is this test which the Singh case has adopted as appropriate for cases such as this one, under the Ontario Human Rights Code.
22Since the Singh decision, the duty to accommodate under the 1972 amendment was considered by the United States Supreme Court in Trans World Airlines, Inc. v. Hardison (1977), 14 E.P.D. 7620. The Court held that an employer was not required to bear more than a minimal cost in order to give an employee Saturday Sabbaths off. The Court of Appeal had suggested that the employer should incur the added cost of overtime compensation to accommodate the employee. Justice White delivered the majority opinion:
To require TWA to bear more than a de minimus cost in order to give Hardison Saturdays off is an undue hardship ... to require TWA to bear additional costs when no such costs are incurred to give other employees the days off that they want would involve unequal treatment of employees on the basis of their religion ... the privilege of having Saturdays off would be allocated to religious beliefs ... In the absence of clear statutory language or legislative history to the contrary, we will not readily construe the statute to require an employer to discriminate against some employees in order to enable others to observe their Sabbath. (at p. 7620)
Counsel for the Commission urged this Board not to adopt the de minimus test accepted by the majority in Hardison, but to hold that a more serious hardship should have to be demonstrated for a contravention of the Code to be avoided.
23Quite frankly, I have reservations about attempting to impose an onus of proof upon an employer to meet a specific standard of undue hardship in the absence of any specific legislative basis. It is one thing to conclude that the total framework of the Code warrants a broad interpretation of what might constitute discrimination under that statute. It is another, in effect, to adopt and read into the Code the specific legislative provision of another jurisdiction.
24Of course, the dilemma is that there does exist a vacuum in the Code. Some standard must be found if an adjudication is to be made and the 1972 U.S. amendment provides an acceptable approach. A specific amendment to the Code to deal with this situation may be desirable.
25Meanwhile, I propose to apply the very general standard of whether the employer acted reasonably in attempting to accommodate the employee in all of the circumstances of the case as well as in the context of the general scope and objects of the Code.
26In a particular case, the matter must be dealt with as a question of proof. In my view, the onus of establishing a contravention of the Ontario Human Rights Code remains upon the Commission (on behalf of the complainant) throughout the inquiry. As a practical matter, the evidential burden will often shift to the respondent (employer, in this case).
27In some cases, the mere fact of a discriminatory result may be sufficient to shift the evidential burden to the respondent to adduce evidence of the reasonableness of its actions. This is particularly so in the absence of a requirement that motive be established. At the same time, in these situations, the proof required to establish the reasonableness of the respondent's position may be minimal.
28In other situations, where the Commission can demonstrate that the complainant or the Commission had earlier put forth a concrete suggestion at to how the employee might be accommodated and no adequate response were received, the evidential burden on the employer when the discriminatory result is drawn to its attention will frequently be crucial to the determination whether or not a contravention has occurred.
29In other words, it will be far easier for the Commission to establish a contravention of the Code where it can point to a specific means by which the employee might have been accommodated. Where that occurs, there will be a clear evidential hurdle facing the employer in terms of demonstrating the reasonableness of its position in not adopting that means of accommodation.
30Thus, in cases of this nature, it is desirable that the Commission, where possible, come to a board of inquiry with a specific proposal or proposals as to how the employer might reasonably have accommodated the employee as well as evidence that such a proposal or proposals were put to the employer during the investigatory stage. Otherwise, at the board of inquiry the employer may be faced with nothing more than a general allegation that it "should have done more".
31It is true that the employer will be in the best position to find an alternative which will reasonably accommodate the employee if such an alternative exists. However, it must also be kept in mind that the Commission has broad powers of inquiry and investigation under section 14 of the Code. Moreover, the refusal of an employer to offer a reasonable response to a proposal at the investigatory stage may well detract from the credibility of any explanation offered for the first time before the board of inquiry. (See, generally, R. v. Robertson (1975), 1975 CanLII 1436 (ON CA), 29 C.R.N.S. 141, at p. 178, per Martin J.A.)
32It is highly desirable that the possible means of accommodating an employee and the employer's response be fully explored and crystallized prior to the establishment of a board wherever possible. Such an approach might tend to discourage a "cat and mouse" approach in anticipation of a board of inquiry. It might also enhance the possibility of conciliation and as a result, reduce the number of boards of inquiry which might otherwise be necessary.
33Of course, in factual situation such as the Singh case, the matter is clear cut. In that case, there was no issue involving alternative means of accommodation. There, the general condition of employment, itself, could not be characterized as reasonably necessary to the business operation. In this case, there is no question of the reasonable necessity of the general condition of employment. The only issue is the manner in which Mrs. Vincent was treated in light of the conflict between that condition and her religious practices.
34There is no question that Mrs. Vincent fully understood and, originally, accepted the condition of employment that she work certain Friday nights and Saturdays according to a fixed rotation. She worked on this basis for a number of years prior to her decision to join the Seventh Day Adventist Church. That decision was made conscientiously and there is no suggestion, whatsoever, that it was at all influenced by a desire to obtain more favourable working conditions.
35Mrs. Vincent testified that she was no longer interested in full-time employment because her husband preferred that she not work full time. She was married in July of 1979. The order requested, therefore, is basically compensation for the difference between full-time and her actual contingent employment during the period from October 23rd, 1978, to approximately July 6, 1979, the date of her second marriage, together with compensation for lost fringe benefits. In addition, she asked that she be given "regular part-time" rather than "contingent" status. This would involve a set number of hours per week on a consistent basis rather than being called "as required".
36In her testimony, Mrs. Vincent stated that one of her co-workers, Mrs. Boucher, was prepared to work Saturdays for her. Since Mrs. Boucher, herself, was required to work two Saturdays out of three, she would only be able to cover off one of the Saturdays required of Mrs. Vincent. Mrs. Vincent testified that the second Saturday could have been covered off by a contingent employee such as "Tracy", who was a 16-year-old student at the time and who was interested in accumulating extra hours. According to Mrs. Vincent, Tracy was a good sales clerk in spite of her lack of experience.
37Mrs. Vincent indicated that, at the time of her dismissal, she was prepared to rotate through different departments if necessary in order to work full time. She also suggested that she might have been assigned to office bookkeeping work involving the U.B.C. (Unit Buying Control). Another alternative suggested by her was that she could have been given a position as a cashier at a "sales centre". (A "sales centre" is merely a central cash register.) Mrs. Vincent had worked as a cashier earlier in her career with Simpsons-Sears Limited. Again, she suggested that a contingent employee could have covered off for her on Saturdays.
38Did the respondent act reasonably in the steps which it took to accommodate Mrs. Vincent after learning that the general condition of employment was incompatible with her religious observance?
39When Mrs. Vincent was dismissed from full-time employment, she was informed by Mr. Burleigh that she could not be allowed to have Saturdays off on a regular basis since this would amount to preferential treatment not offered to the other sales staff. Mr. Burleigh elaborated on this consideration during a subsequent meeting with an officer of the Commission. He indicated that he knew his staff well enough to know that such "preferential treatment" would create resentment amongst other staff members. Approximately 160 to 165 employees worked on Saturdays.
40Mrs. Vincent agreed that many employees, particularly those with families, would prefer to have Saturdays off. In fact, she recalled the complaints on the part of employees when they were required to work every Saturday. The rotation through two Saturdays out of three appears to have been a response to those complaints and the system seems to have gained some acceptance on the part of the employees. Argument was not advanced on this issue of morale problems which might have been created and it does not form a basis of the decision.
41At the time of her dismissal, Mr. Burleigh also informed her that this action was necessary "to ensure proper staff availability consistent with departmental needs". The thrust of the cross-examination of Mrs. Vincent was to establish that selling women's clothing involved special skills, tact and a familiarity with the clientele. Furthermore, the ladies' fashions department was an important department in comparison to most others on the basis of volume in dollars and cents. Moreover, Thursday and Friday nights and all day Saturday "are the times for selling", in Mrs. Vincent's words. On weekdays, the sales staff are more involved with non-selling functions such as receiving, mark-down and returns of merchandise. No experience is required for these tasks.
42In the ladies' fashions department, at the time of Mrs. Vincent's dismissal, there were six full-time employees, one "regular part-time" (fixed number of hours) and six "contingent" (called to work as required). Three of the "contingent" employees worked regularly in this department and three "floated" between ladies' wear and other departments.
43The "regular part-time" employees and the three "contingent" employees worked every Saturday. Each of the six full-time employees worked two Saturdays out of three so that there were four full-time employees on duty every Saturday. Four of the six contingent employees had had a number of years of experience. The other two had little or no experience. It is not clear from the evidence whether the two or three contingent employees not working In ladies' wear on any given Saturday were ordinarily available on those days or whether they would normally be working in another department. However, Mrs. Vincent did testify that most contingent employees worked every Saturday and would only receive Saturdays off, on request, for special reasons.
44Mrs. Vincent was replaced by another full-time employee who had been transferred from another department. However, apparently due to the reduced volume of retail sales generally, she only stayed for approximately one year and then was transferred once more. She was not replaced in the ladies' fashions department so that the regular establishment of full-time employees in this department has been reduced, from six to five.
45The evidence adduced before this board was incomplete in many respects. There was no evidence that any of the specific alternatives raised in Mrs. Vincent's testimony, had been suggested to the employer either by Mrs. Vincent at the time of the dismissal from full-time employment or by an officer of the Commission during the investigation leading up to the appointment of this board of inquiry. The respondent elected not to call evidence. As a result, a number of issues were raised but not fully dealt with in the evidence.
46This may have been an appropriate case for Commission counsel to have taken the initiative of calling officers of the respondent to the stand. I am of the view that, while unusual, such a procedure is available and warranted in some situations. The board, itself, should not take such an initiative in view of section 14b(1)(a) of the Code which provides that the Commission "shall have full carriage of the complaint".
47Taking into account all of the circumstances of the case and the entire context of the Ontario Human Rights Code, I have concluded that the Commission has not satisfied its onus of establishing that the respondent acted unreasonably in the steps which it took to accommodate the complainant after learning that the general condition of employment was incompatible with her religious observance.
48On the evidence available, the respondent cannot be said to have acted unreasonably in not creating a unique position for Mrs. Vincent which would accommodate her religious needs. To do so would have deprived the employer of the most valuable aspect of the contribution of the full-time sales employee, namely, availability during the most crucial selling periods of Friday evenings and Saturdays. Indeed, it appears that Mrs. Vincent's current contingent status is somewhat unique in that, according to her testimony, contingent employees generally work every Saturday while she does not work Friday evenings or Saturdays.
49The respondent reacted to the complainant's plight by immediately offering her employment on a contingent basis and indicating that she would be considered for any full-time positions which might become available which would accommodate her personal needs.
50As a contingent employee, Mrs. Vincent's hours per week were reduced to an average of slightly more than half. She testified that her employer did make efforts to provide her with extra hours of work when that was possible. For example, in the weeks preceding the Christmas and Easter seasons, she was invited to work in the Security department, walking the floors and watching for "shoplifters", which she did.
51She was not offered a full-time job during the period in question. However, there is no evidence that any became available. Mrs. Vincent testified that the company has a practice of posting notices of full-time jobs which become available but she did not apply for any of them since, in each case, she was not qualified or the job would involve working on her Sabbath. While she suggested that she was qualified to be employed full time as a cashier or in bookkeeping, again, there is no evidence that any such positions were available during this period. She recognized that the number of full-time employees, generally, had declined during the period in question. Presumably, this was because of a general slow-down in business and, indeed, resulted in the eventual elimination of the full-time position which she, herself, had previously held.
52Mrs. Vincent would now prefer the status of a "regular part-time" employee with a fixed number of hours per week not including Friday nights or Saturdays. However, this preference appears to have resulted from Mrs. Vincent's marriage and to have been advanced for the first time at the hearing. On cross-examination, it was suggested to Mrs. Vincent that this status was abolished some seven years ago. Her response was that she was unable to comment but that she was not aware of anyone being hired on this basis within the last seven years. In the circumstances, Mrs. Vincent's current preference would only be relevant to any order which might be made. It does not bear upon the reasonableness of the respondent in accommodating her situation.
53I have decided, therefore, that the Commission has not satisfied its onus of establishing a contravention of the Code. I am indebted to Mr. Riggs and Mr. Rueter for their able and very helpful arguments on the legal issues. In view of the differences in approach taken in the Singh case and this one, particularly in relation to the onus of proof, this may be an appropriate decision for an appeal, with the object of establishing binding precedent in relation to the important legal issues involved.
54In accordance with section 14c of the Code, therefore, I have decided that no party has contravened that Act.