Strauss v. Ontario (Liquor Licence Board), 1994 CanLII 18415

Strauss v. Ontario (Liquor Licence Board)

1994-10-04

Ontario Board of Inquiry

Ruth Eva Strauss Complainant

v.

Liquor Licence Board of Ontario and Vicky LeClerc Respondents

Date of Complaint: August 15, 1990

Date of Decision: October 4, 1994

Before: Ontario Board of Inquiry, Elizabeth Beckett

Comm. Decision No.: 657

Appearances by: Sharon Ffolkes-Abrahams, Counsel for the Commission Ruth Eva Strauss, on her own behalf Louise Hurteau, Counsel for the Respondents

RELIGION AND CREED — REASONABLE ACCOMMODATION — discriminatory treatment in employment — duty to accommodate religious beliefs — work shift assignment — complainant's duty of accommodation — duty to accommodate short of undue hardship

Summary: The Board of Inquiry dismisses the complaint of Ruth Eva Strauss who alleged that she was discriminated against because of her religion by the Liquor Licence Board of Ontario (LLBO).

Ms. Strauss is an orthodox Jew. She worked for the LLBO starting in 1987 on a 7:30 a.m. to 3:30 p.m. shift. In order to observe her sabbath from sundown Friday to sundown Saturday, she needed to leave work an hour early on Fridays during the winter because sundown comes around 4 p.m. Ms. Strauss needed to be home early enough to make small personal preparations for the following twenty-four hours during which, according to the tenets of her religion, she could not cook, bathe or use a motor vehicle. She also needed to light candles before sundown.

In the initial period of her employment, the requirements of her religion caused no difficulties. Ms. Strauss was allowed to use time off that she accumulated because of working overtime and flextime arrangements to cover her early leaving on Fridays during the winter season.

However, a new supervisor, Ms. LeClerc, decided to deal with her need to leave early on a week by week basis and required her to seek prior approval. At a meeting between Ms. LeClerc and Ruth Eva Strauss in January 1990, Ms. Strauss was told that she believed her needs could be accommodated by leaving at 3:30 p.m. and that she could not leave work early the following Friday. Ms. Strauss was very upset during this meeting. She left work at its conclusion and did not return.

The Board of Inquiry finds that no discrimination occurred because Ms. Strauss did not explain her needs to her employer well enough for the employer to understand. Though at the hearing Ms. Strauss presented a candle-lighting schedule from her temple which showed that she needed to be home to light candles by 4:20 p.m. during the depths of winter, she did not present this to Ms. LeClerc at the time of the meeting.

The Board of Inquiry concludes that the employer took reasonable steps to accommodate Ms. Strauss and to communicate with her. But the Board of Inquiry finds that Ms. Strauss did not give the employer a better opportunity to accommodate her because she failed to communicate adequately.

The complaint is dismissed.

Cases Cited

Central Okanagan School Dist. No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970, 16 C.H.R.R. D/425: 18

Ontario (Human Rights Comm.) and O'Malley v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536, 7 C.H.R.R. D/3102: 15

Legislation Cited

Ontario

Human Rights Code, R.S.O. 1990, c. H.19: 1

1This is a complaint [under the Human Rights Code, R.S.O. 1990, c. H.19] against the Liquor Licence Control Board of Ontario (hereinafter called the LLBO) by Ruth Strauss, one of its employees, alleging discrimination by the employer on the basis of creed. Ms. Strauss is an Orthodox Jew and observes the Sabbath of that faith. The Sabbath for these believers begins at sundown on Friday and ends an hour after sundown on Saturday. During the Sabbath believers are to refrain from cooking, bathing, using money or any type of motor vehicle. There are, of course, other spiritual observances but those did not affect the complainant in her relationship to her employer.

2The turning back of the clock the last Saturday in October together with the gradual shortening of the days leading up to winter solstice results in sundown occurring very early in the winter months. The complainant is required to light candles to observe the Sabbath and these must be lit just before sundown; in addition she needs to do some small preparation of a personal nature because of the other restrictions mentioned above.

3The complainant began working for the LLBO on June 8, 1987, as a temporary employee and on September 28, 1987, was offered full-time employment. Her evidence was that when she began permanent employment she made arrangements to leave early on Fridays to accommodate her observance of the Sabbath. She agreed to work during her lunch hours to make up any time she took off. It was also part of her evidence that her work hours were 7:30 a.m. to 3:30 p.m. These hours were in consideration of her need to leave early on Fridays. Other staff also made use of "flex time" offered by the employer to accommodate day care arrangements and other personal circumstances.

4For the first year of employment Ms. Strauss had no problems. She testified (Transcript, p. 28):

I was not questioned too much. I did not take advantage of one moment. I came to work on time and did as I was assigned. I was proud to be offered full-time employment at the LLBO as an Orthodox Jew.

Her then manager, Mr. Jackson, appears to have taken a casual approach to her need to leave earlier than 3:30 in the winter. He apparently allowed her to leave as she saw fit.

5In 1988 Ms. LeClerc became the supervisor of the area in which Ms. Strauss worked. That year the complainant sometimes had the opportunity to work overtime and when she did she always chose to have time in lieu of the extra pay. These hours she mentally set aside to use when she needed to leave early. This arrangement was apparently acceptable to Mr. Jackson but Ms. LeClerc wanted to make the office more professional and she requested that the complainant put in writing her request for early leaving. This was done on two separate request forms. Ms. Strauss requested one hour each Friday from November 3, 1989, to December 15, 1989, as part of her annual leave (Exhibit 16). Then she requested that six hours of overtime owed to her be used to allow her to leave one hour early each Friday from January 5, 1990, to February 9, 1990 (Exhibit 15). These requests, if granted, would allow her to leave work at 2:30 each Friday during the months when sundown was early. Ms. LeClerc approved the requests up to the end of December 1989 but not the ones for 1990. Mr. Jackson was Ms. LeClerc's supervisor and when Ms. Strauss approached him she was told that she must seek approval from Ms. LeClerc. Ms. Strauss viewed Ms. LeClerc merely as a scheduling person and did not acknowledge her new role as supervisor of the area. This caused conflict as Ms. LeClerc attempted to assert her leadership.

6Ms. LeClerc went on vacation early in January 1990. The evidence was unclear about the exact dates of her absence from the office but during that time the complainant left prior to 3:30 on Fridays. She did this without formal approval. Her evidence was that she had worked overtime and had to leave in order to be home in time to do her preparations to observe the Sabbath. When Ms. LeClerc returned, and the matter was brought to her attention by her staff, this early absence was treated as a disciplinary matter and a letter was sent to the complainant advising her that she was not to leave early unless she got approval. She was told that the approval would be communicated to her by noon Thursday of any particular week (Exhibit 3). While Ms. LeClerc treated the early leaving as a disciplinary matter, she acknowledged that she knew Ms. Strauss left early for religious reasons, yet she seemed to treat these requests as she might treat a request for early release for more mundane reasons. At this point it seems that the parties were confused or at least not communicating with each other in a straightforward manner. A memorandum sent to the complainant by Ms. LeClerc demonstrated this lack of clarity. It stated (Exhibit 3):

Due to the frequency of your requests to leave early on Fridays, I would like to meet with you to review your exact need in this area on Friday, January 26 1990 at 11:00.

The date was subsequently changed to the 24th. (The 26 was a typing error and the meeting was moved to Thursday from Friday.)

7Ms. LeClerc stated in her evidence that one of her goals was to make it clear to Ms. Strauss that she must seek approval for her actions and that she, Ms. LeClerc, was the person who would grant the approval. Ms. LeClerc felt that the complainant's needs were already being met by use of "flex time" while Ms. Strauss was very concerned and upset because she felt that she was only going to be given permission to leave prior to 3:30 on a week by week basis with the possibility that some weeks the permission would not be forthcoming. Ms. Strauss was of the firm opinion that there were Fridays in the winter when she must leave by 2:30 or 3:00 to be home in time to observe the Sabbath properly.

8Unfortunately the meeting of January 24, 1990, did not clear up the situation. Although at the hearing Ms. Strauss presented a candle lighting schedule (Exhibit 2) this was not presented at the meeting of January 24, 1990. This schedule, prepared by the rabbi of her Temple, indicated at what time each week the candles should be lit. It indicated that from November 16 to December 28 the candles must be lit by 4:32, 4:27, 4:23, 4:21, 4:21, 4:23 and 4:27 respectively. Ms. LeClerc in preparation for the meeting had contacted a Jewish organization regarding Sabbath observance. It was not necessarily an Orthodox organization and certainly not Ms. Strauss's Temple. She also contacted the Toronto Transit Commission to find out from this authority how long it would take the complainant to travel from the LLBO offices to her home. The result of these inquiries led her to the conclusion that there was ample time for Ms. Strauss to get home on all Friday nights if she left work by 3:30.

9The evidence revealed that Ms. Strauss did not communicate her needs to the employer. The employer thought that she needed to be home before sunset. The employer did not understand the requirement of candle lighting nor the other preparations Ms. Strauss had to complete. These were outlined at the hearing but not at the meeting called by Ms. LeClerc. I believe that Ms. Strauss was intimidated by the meeting and on the defensive. She was unable to present her needs; rather her stance was, in effect: "I am a good employee. I require this time. I have worked the overtime to pay for it. Therefore you have no right to demand I justify it." This situation required a very skilled communicator who would have been able to calm Ms. Strauss's anxieties enough to explore her needs. The employer could not make a reasonable judgment about Ms. Strauss's needs because they were unable to elicit the information required to make it.

10The outcome of the meeting was that no further accommodation would be forthcoming except on a week by week basis when perhaps in really inclement weather she would require more time to get home. Ms. Strauss's worst fears were confirmed by Ms. Flaherty, the union stewar[d] who attended the meeting with Ms. Strauss. Ms. Strauss's testimony was that Ms. Flaherty said "If I decided to leave work on Friday January 25, 1990, I cannot do so and I would be responsible for it." Ms. Strauss then testified that (Transcript, p. 41), "From all that excitement, I sure did not feel well and went home emotionally ill on Thursday, January 25 [sic], 1990." Ms. Strauss did not return to work.

11Ms. Jan Marples Ogden worked for the LLBO during the period that is the subject of this complaint. She worked in the human resources area and part of her job included advising employers and employees of their rights and responsibilities under various labour-related statutes. She had been consulted by Ms. LeClerc about Ms. Strauss's difficulties and had sat in on the meeting of January 24, 1990. Her evidence was that Ms. Strauss was agitated and defensive during the meeting. Ms. Ogden attempted to reach Ms. Strauss by telephone early the next week but her calls were not returned. Two letters were sent by courier to Ms. Strauss; they were refused. Finally a registered letter was sent. In response to the registered letter Ms. Strauss resigned from her position with the LLBO and there followed a flurry of correspondence regarding overtime pay owing. This correspondence did not mention the reason for the resignation but no one has denied that it arose due to the handling of the complainant's request to leave early to observe the Sabbath in the way she felt her religion demanded of her. The letters from Ms. Strauss give further evidence of her agitated state and her inability to put before the employer her needs in this area (Exhibits 7, 9 and 10).

12Ms. Strauss took her complaint to the Human Rights Commission and a formal complaint was issued on August 15, 1990. The complaint was heard by the Board four years later. Ms. Strauss was extremely distressed by this delay.

13At the outset of the hearing Commission counsel stated that they would not be calling any evidence in this case. It was the view of the Commission that the public interest had been served and that the outstanding settlement offer was adequate in the circumstances and therefore the Commission would not be proceeding with the case. No details were given to the Board. The complainant elected to proceed on her own and refused any help from Commission counsel. Commission counsel did provide the Board with a book of authorities but no written or verbal argument. It should be mentioned that the respondent objected to allowing the case to go forward given that the Commission, who had carriage of the case, had withdrawn. In general respondent counsel found the whole handling of the case to be unprofessional. She indicated that her client was singularly unimpressed with the Human Rights Commission.

14Ms. Strauss did not see her way clear to participate in any of the conference calls or case conference meetings prior to the hearing. Because of her absence, counsel for the Commission and for the respondent were under the impression that she was not going to pursue this matter. However, Ms. Strauss did appear at the hearing. This took all counsel by surprise. Respondent counsel was granted an adjournment for the presentation of her case as she had, in reliance on the understanding reached between herself and Commission counsel, indicated to her witnesses that they would not be required. Unfortunately Ms. Strauss was only able to attend on the original hearing day scheduled. She gave her evidence and was cross-examined on that day (June 20, 1994). She did not attend on the second day (August 4, 1994).

15It is the finding of the Board that the LLBO did not discriminate against Ms. Eva Strauss in employment on the basis of her creed nor did they harass her. The law in this area makes it clear that the employer has a duty, short of undue hardship, to accommodate an employee's religious practices (Ontario Human Rights Commission and O'Malley v. Simpsons-Sears Ltd. (1985), 1985 CanLII 18 (SCC), 7 C.H.R.R. D/3102 (S.C.C.)).

16It would not have been a hardship for the LLBO to allow Ms. Strauss to use her accumulated overtime or to work during her lunch hour in order to leave an hour early for six or seven weeks during the dark of winter. They had done it in 1988 and the late part of 1989 and there was no evidence that things had changed in any substantial way in 1990. On the other hand, the employer had every right to have it clearly demonstrated that the accommodation was necessary. In this case the employer had provided Ms. Strauss with a schedule that allowed her to leave by 3:30 p.m. The employer's independent investigations led them to a reasonable conclusion that this was sufficient time for the complainant to be home before sunset. The employer did not realize the full extent of the religious observance which actually required that Ms. Strauss be home about half an hour before the Sabbath started. Ms. Strauss was not able to communicate this need to the employer. She did not say why she needed to leave by 2:30 on some Fridays. In her mind she was a good employee who did her job well and did not take advantage of the employer. Her evaluations support this view (Exhibits 24 and 26). She decided that because of this she had the right to leave work because for her it was a necessity. She rebuffed the employer's efforts to contact her when it became evident that she was not returning to work.

17Ms. Strauss was very upset when she realized that Ms. LeClerc might not allow her to leave in time to do what she believed was necessary to observe the Sabbath. Her emotional response stood in the way of her being able to communicate her needs to the employer.

18The duty of the complainant in cases of accommodation was clearly stated in Renaud v. Board of School Trustees, School District No. 23 (Central Okanagan), 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970 at 994–95 [16 C.H.R.R. D/425 at D/440]. The Court stated that the search for accommodation must be undertaken by all parties and the conduct of not only the employer but also the employee will be examined.

When an employer has initiated a proposal that is reasonable and would, if implemented, fulfil the duty to accommodate, the complainant has a duty to facilitate the implementation of the proposal. If failure to take reasonable steps on the part of the complainant causes the proposal to founder, the complaint will be dismissed. The other aspect of this [duty] is the obligation to accept reasonable accommodation . . . The complainant cannot expect a perfect solution. If a proposal that would be reasonable in all the circumstances is turned down, the employer's duty is discharged.

19It is the decision of this Board that it was not reasonable for the complainant to expect that her employer could meet needs they did not know she had. The employer took reasonable steps to accommodate; they took reasonable steps to communicate; the failure must be laid at the complainant's door. I believe that Ms. Strauss acted from a well-founded belief in the rightness of her cause and I regret the pain that this decision will no doubt cause her but it is my belief that the employer in this case would have attempted a better solution had they been given any real opportunity to do so.

20The Board dismisses the complaint.