Ontario Board of Inquiry
Carol Shapiro Complainant
and
Ontario Human Rights Commission Commission
v.
Regional Municipality of Peel Respondent
Date of Complaint: February 24, 1992
Date of Decision: July 16, 1997
Before: Ontario Board of Inquiry, Heather M. MacNaughton
Decision No.: 97-015
Appearances by: Paul Shapiro, Counsel for the Complainant Robert W. Little, Counsel for the Respondent
RELIGION AND CREED — refusal to compensate for religious holy days — DISCRIMINATION — adverse effect discrimination — REASONABLE ACCOMMODATION — duty to accommodate in case of adverse effect accommodation — duty to accommodate short of undue hardship — accumulation of overtime — reasonable accommodation principle
Summary: An Ontario Board of Inquiry finds that Carol Shapiro was discriminated against because of her religion when she was required by her employer, the Regional Municipality of Peel, to use vacation time, lieu time or unpaid leave to observe Jewish holy days.
Ms. Shapiro is a registered dietitian and was hired by Peel in 1984 as a public health nutritionist. Ms. Shapiro delivered programs at various sites in the community, often in the evenings and on weekends. She was not monetarily compensated for overtime. She received five days per year of compensatory time off, but she regularly worked more overtime than this.
Ms. Shapiro was entitled to fifteen days of vacation time per year and eleven days of statutory holidays and paid holidays. These were New Year's Day, Good Friday, Easter Monday, Victoria Day, Canada Day, Labour Day, Thanksgiving Day, Christmas Day, Boxing Day, Civic Holiday and one floating day.
Ms. Shapiro is an observant member of the Jewish faith. She keeps a kosher home and is active in Jewish service organizations. She also observes all Jewish holy days. In order to make up these days when they fell on a work day, Ms. Shapiro was required to use vacation time, time accumulated in lieu of compensation for overtime, or unpaid leave. Until 1989, Ms. Shapiro did this. In 1990, however, she wrote to her supervisor and indicated that she objected to having to use vacation time, lieu time or unpaid leave to observe Rosh Hashana. She proposes that she be allowed to make up the time that she did not work while celebrating this religious holiday by working overtime.
The Municipality declined Ms. Shapiro's request on the grounds that it could not accommodate every employee this way, because not every employee requiring religious accommodation would have overtime work available to her to make up for the lost work time.
The Board of Inquiry notes that the Supreme Court of Canada held in Comm. Scolaire Régionale de Chambly v. Bergevin that a calendar which recognizes Good Friday, Easter Monday and Christmas Day as holidays is not a Christian religious calendar but a secular one. Being bound by this holding, the Board of Inquiry finds that the Municipality's work schedule is not directly discriminatory. However, it nonetheless results in discrimination because of its adverse effect on Ms. Shapiro. Employees of the Christian faith were able, if they chose, to celebrate the Christian holy days of Christmas, Good Friday and Easter Monday without having to use vacation time, lieu time or unpaid leave, while Shapiro was required to use vacation time, lieu time or unpaid leave to celebrate Jewish holy days.
The Board of Inquiry finds that the Municipality could have accommodated Ms. Shapiro and failed to do so. The law does not require that every employee be accommodated in the same way. Ms. Shapiro's proposal that she would work overtime to make up for the time she lost from work to celebrate Rosh Hoshana was a reasonable one, and would not have caused undue hardship to the Municipality.
The Board of Inquiry rules that Ms. Shapiro was discriminated against. There is no award of damages.
[Ed. Note: See also (No. 1) (1997), 1997 CanLII 24834 (ON HRT), 29 C.H.R.R. D/77 (Ont. Bd.Inq.).]
CASES CITED
Central Alberta Daily Pool v. Alberta (Human Rights Comm.), 1990 CanLII 76 (SCC), [1990] 2 S.C.R 489, 72 D.L.R. (4th) 417, 12 C.H.R.R. D/417: 15
Islamic Schools Federation of Ontario v. Ottawa Board of Education (April 27, 1997), (Ont. Ct. (Gen.Div.)) [unreported]: 11
Ontario (Human Rights Comm.) and O'Malley v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536, 23 D.L.R. (4th) 321, 7 C.H.R.R. D/3102: 12, 14
Régionale de Chambly, Comm. scolaire v. Bergevin, 1994 CanLII 102 (SCC), [1994] 2 S.C.R. 525, 115 D.L.R. (4th) 609, 22 C.H.R.R. D/1: 11
Shapiro v. Peel (Regional Municipality) (No. 1) (1997), 1997 CanLII 24834 (ON HRT), 29 C.H.R.R. D/77 (Ont. Bd.Inq.): 2
LEGISLATION CITED
Ontario
Human Rights Code, R.S.O. 1990, c. H.19
s. 5(1): 1
s. 9: 1
1Carol Shapiro alleges that she was discriminated against by the Regional Municipality of Peel (“Peel”?) on the basis of creed in contravention of ss. 5(1) and 9 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”?). I was assigned to inquire into Mrs. Shapiro's complaint.
2In an Interim Decision released February 3, 1997 ([reported 1997 CanLII 24834 (ON HRT), 29 C.H.R.R. D/77], I ruled that Mrs. Shapiro could continue with her complaint before the Board in the absence of the Ontario Human Rights Commission who had reached a settlement with Peel. Counsel for Mrs. Shapiro then indicated that he would not be proceeding with the complaint against the individual respondents previously named.
THE FACTS
3There was very little dispute with respect to the facts giving rise to Mrs. Shapiro's complaint.
4Mrs. Shapiro is a registered dietician and was hired by Peel as a public health nutritionist in 1984. She held that position until her resignation in 1993. Her qualifications for the position included a Bachelor of Science degree and a Masters of Environmental Studies degree specializing in Public Health. As a public health nutritionist she developed and implemented nutrition education programs for professionals, including teachers, public health officials and physicians, in Peel.
5Mrs. Shapiro worked out of Peel's offices in Brampton but programs were often delivered at various sites in the community and on evenings and weekends. This required flexibility on her part and enabled her to occasionally work at home.
6Mrs. Shapiro was not monetarily compensated for overtime. Her overtime was recognized by Peel through the provision of up to a maximum of thirty-five hours per year (five days) as compensatory time off. Mrs. Shapiro regularly exceeded thirty-five hours of overtime in her position.
7Mrs. Shapiro was entitled to fifteen days annual vacation. In addition Peel recognized seven days as paid holidays or statutory holidays. These were New Year's Day, Good Friday, Victoria Day, Canada Day, Labour Day, Thanksgiving Day and Christmas Day. Peel further allowed Easter Monday, Civic Holiday, Boxing Day, and one floating day, as designated by management, as paid holidays.
8Mrs. Shapiro is an observant member of the Jewish faith. She is an active member of her Synagogue, maintains kosher dietary laws in her home, and is actively involved in Jewish service organizations. Mrs. Shapiro observes all of the Jewish holy days. Of these, Rosh H[a]shana, Yom Kuppour, Succoth and Shemini Azeret, which are both associated with Passover, and Shavuoth are particularly importantly. Mrs. Shapiro attended her Synagogue for all, or part, of these holy days. As a result of employment policies in place at Peel, in order to observe Jewish holy days when they fell on a work day, Mrs. Shapiro was required to use vacation time, time accumulated in lieu of overtime, or to take unpaid leave.
9Until 1989 Mrs. Shapiro complied with Peel's policies, and ensured that she had sufficient vacation time, or time in lieu of overtime, available to observe the holidays. However, in 1990 Mrs. Shapiro wrote to her supervisor and indicated that she objected to using her lieu time, or vacation time, for the purpose of celebrating Rosh Hashana. She indicated that in her view Peel was required to accommodate her celebration of her religious holy days. She proposed that she be allowed to make up the time she had used for the observance of Rosh Hashana by working overtime. Peel responded to Mrs. Shapiro's request by declining to change the existing policy, on the basis that not every employee, who might seek religious accommodation, had overtime work available to them to make up for the lost time.
10Early in 1990 Mrs. Shapiro indicated to Peel that she would be pursuing her remedies with the Ontario Human Rights Commission. Subsequent attempts to resolve the dispute with Peel were not successful and Mrs. Shapiro ultimately filed the complaint, which led to this hearing.
ANALYSIS
11It has been held by the Supreme Court of Canada in Régionale de Chambly, Commission scolaire v. Bergevin (1994), 1994 CanLII 102 (SCC), 115 D.L.R. (4th) 609 [22 C.H.R.R. D/1], and by the Ontario Divisional Court in Islamic Schools Federation of Ontario v. Ottawa Board of Education (unreported, April 27, 1997), that a calendar which recognizes Good Friday, Easter Monday and Christmas Day as holidays is not a Christian religious calendar but a secular one, despite the historical significance of those days in the Christian calendar. I am bound by those findings. I therefore find that the calendar of work adopted by Peel is a secular calendar and did not directly discriminate against members of the Jewish faith.
12However, my inquiry cannot stop there. I must determine whether the secular calendar had the effect of discriminating against Mrs. Shapiro. Discrimination can result from the effects of an otherwise neutral rule. Indirect discrimination or discrimination by adverse effect was defined in Ontario (Human Rights Commission) v. Simpsons-Sears Ltd. (1985), 1985 CanLII 18 (SCC), 23 D.L.R. (4th) 321 at 332 [7 C.H.R.R. D/3102 at D/3106, para. 24772] (“O'Malley”?) as follows:
... [I]t arises where an employer for genuine business reasons adopts a rule or standard which is on its face neutral, and which will apply equally to all employees, but which has a discriminatory effect upon a prohibited ground on one employee or group of employees in that it imposes, because of some special characteristic of the employee or group, obligations, penalties, or restrictive conditions not imposed on other members of the work force ... An employment rule honestly made for sound economic or business reasons, equally applicable to all to who[m] it is intended to apply, may yet be discriminatory if it affects a person or group of persons differently from others to whom it may apply.
13In my view the work schedule adopted by Peel was discriminatory in its effect. Employees of the Christian faith were able, if they chose, to celebrate the Christian holy days of Christmas, Good Friday and Easter Monday without using vacation days, lieu days or taking an unpaid leave of absence. In contrast, Mrs. Shapiro was required to use a vacation day, a lieu day, or an unpaid leave, to celebrate Jewish holy days. Thus, although by maintaining available holidays or lieu days Mrs. Shapiro suffered no loss in pay, she was required to use a day, to which she was otherwise entitled, for a religious purpose.
ACCOMMODATION
14When adverse effect discrimination occurs an employer must take reasonable steps to accommodate the individual, or group, adversely affected. What steps did Peel take to accommodate Mrs. Shapiro? Mrs. Shapiro testified that there was sufficient work available in her department and that she could easily have made up any time she took off for religious reasons by working overtime. She was supported in that evidence by Dr. Cole, the witness called by Peel. Peel rejected overtime as an accommodation option because not all employees had overtime work available in their departments. By rejecting the accommodation proposed on that basis, Peel misunderstood the extent of their obligation to accommodate Mrs. Shapiro. The extent of their duty to accommodate was explained in O'Malley, supra, at 335 [D/3107, para. 24777]:
The duty in a case of adverse effect discrimination on the basis of religion or creed is to take reasonable steps to accommodate the complainant, short of undue hardship: in other words, to take such steps as may be reasonable to accommodate without undue interference in the operation of the employee's business and without undue expense to the employer.
15The factors to be considered in determining what may constitute reasonable accommodation were set out in Central Alberta Daily Pool v. Alberta (Human Rights Commission) (1990), 1990 CanLII 76 (SCC), 72 D.L.R. (4th) 417 [12 C.H.R.R. D/417 at D/438, para. 63]:
I do not find it necessary to provide a comprehensive definition of what constitutes undue hardship but I believe it may be helpful to list some of the factors that may be relevant to such an appraisal. I begin by adopting those identified by the Board of Inquiry in the case at bar — financial cost, disruption of a collective agreement, problems of morale of other employees, interchangeability of work force and facilities. The size of the employer's operation may influence the assessment of whether a given financial cost is undue or the ease with which the work force and facilities can be adapted to the circumstances. Where safety is at issue both the magnitude of the risk and the identity of those who bear it are relevant considerations. This list is not intended to be exhaustive and the results which will obtain from a balancing of these factors against the right of the employee to be free from discrimination will necessarily vary from case to case.
16By declining Mrs. Shapiro's proposal to work overtime on the basis that others could not be so accommodated, Peel was narrowing its consideration of the reasonableness of the request for accommodation to one of the factors set out in Alberta Dairy Pool. In so doing it failed to consider many of the other factors. Peel did not lead any evidence or argue that the accommodation proposal would have caused it undue financial hardship. Further Peel led no evidence that alternate means of accommodating other employees were unavailable to it.
17The law does not require that accommodation be the same for all employees. Imposing such a restriction on the assessment of an accommodation request unduly narrows the scope of the obligation to accommodate and the obligation that undue hardship to the employer be assessed on a case by case basis.
18In the result, I was not persuaded that accommodating Mrs. Shapiro's request would have caused Peel undue hardship. Peel therefore failed in its duty to accommodate Mrs. Shapiro.
DAMAGES
19In support of her claim for general damages, and damages arising out of mental distress, Mrs. Shapiro testified that she was extremely upset by a settlement offer Peel made to her to resolve her complaint and, further, by what she saw as a failure by Peel to respond directly to her regarding her request for accommodation.
20Counsel for Mrs. Shapiro argued that I should hear evidence about the settlement proposal because it was relevant to the issue of Peel's bad faith in its dealings with Mrs. Shapiro. Counsel for Peel countered that the offer arose in the context of settlement discussions and was, therefore, privileged. Peel further argued that the settlement discussions were not relevant because Peel was not relying on them to found their defence of the reasonableness of their accommodation efforts.
21I was not persuaded, based on the evidence, that the proposal was privileged. However, there was no evidence on which I could find that Peel had acted in bad faith. Dr. Cole was sincere in his praise of Mrs. Shapiro and was frank in admitting that the settlement proposal was inadequate.
22With respect to the communication between Peel and Mrs. Shapiro regarding her request for accommodation, I was not persuaded that Mrs. Shapiro's concerns arose from anything other than her negative response to the Peel settlement offer. I am therefore unprepared to make any award for general damages, mental distress, or to make a finding that Peel acted in bad faith.
23With respect to the claim for special damages, Peel's counsel argued that Mrs. Shapiro did not suffer any loss of vacation time, lieu time, or any loss of pay, in order to celebrate her religious holy days. It was clear from the evidence of both Mrs. Shapiro and Dr. Cole that, subsequent to the issue of religious accommodation being raised by Mrs. Shapiro, Peel did not deduct vacation time or lieu days from Mrs. Shapiro, and paid her for any religious holidays that she celebrated. Therefore, Mrs. Shapiro suffered no monetary loss as a result of the breach of the Code.
24I therefore declare that the policy in place at Peel in 1989 to 1993 with respect to the observance of religious holidays adversely discriminated against Mrs. Shapiro but award no damages, general or special, because Mrs. Shapiro suffered none.