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What if a Male Employee Refuses to Work with Female Coworkers Due to His Religion?

There’s a big brouhaha in the media this week about a professor at York University who refused a student’s request for religious accommodation in the performance of a group assignment for a distance (Internet) course.  The student sent a email to the professor claiming that his religion prohibited him from working closely in a group with women, something required by the assignment.  The student says a reason he took the Internet course was to avoid group work and this potential problem.  Other students who cannot attend in-person group meetings for non-religious reasons have been accommodated and allowed to do something else instead of the group assignment. Apparently, the University administration sought legal advise and then took the position that the student’s request should be granted and an alternative means of performing the assignment should be offered.  Probably to the great surprise of the student, his private personal email to a professor requesting religious accommodation some how ended up on the front page of national newspapers.  Here’s a op-ed by one of Ontario’s leading human rights code experts Raj Anand discussing York’s position in that dispute.

HR-tribunal3-150x137I won’t comment on the York case specifically, since it is not an employment case.  But I’m interested in how this scenario would be dealt with in an employment setting.  What if an employee who is usually a machine operator and works by himself is one day told unexpectedly by the employer that he will have to go work in a team comprised of women coworkers.  He tells the employer that his religion forbids him from working in close quarters with women who are not his family, and he requests accommodation that will allow him to keep working without the new requirement to work in the mixed gender group. Could the employer refuse that request outright and insist that he work with the women, else be fired?

My Employment Law students should know how to approach that question.  As I always preach, human rights issues need to be approached by asking two questions:

First question:  Does the employer’s requirement (all employees are required to work with coworkers of the opposite sex) discriminate, directly or indirectly, on the basis of a prohibited ground?

Let’s assume that the employee is being honest in his belief that his religion prohibits working closely with women in a team, and that he is not just trying to get out of a task.  The Supreme Court of Canada has applied a test of “sincerity of belief” in a religious doctrine (for example, see the discussion at para. 22, 49-51 in S.L. v. Commission scolarie des Chenes (2012, SCC).   If the employee has a sincere belief that his religion prohibits him from working closely with women, then that is enough to trigger the protection of the legal prohibition on religious discrimination in human rights statutes.  [See discussion of this issue too in Heintz v. Christian Horizons, HRTO, 2008] Since even religious experts can disagree on what a religion ‘requires’, Tribunals and Courts do not generally try to decide what the religion actually says.  “Sincerity of belief” by the employee that the religion dictates this or that action is the test.  So let’s assume the employee can meet the test of a sincere belief that his religion forbids him from working in a close group within women who are not his family.

In Ontario, the Human Rights Code prohibits discrimination on the basis of religion (creed) in employment (Section 5).  The rule requiring male employees to work directly with women indirectly discriminates against this employee on the basis of his religion.  Indirect discrimination occurs when a rule that is neutral on its face–it treats everyone the same–has an adverse impact on some people because of their religious convictions.  That is what is happening here.

Second question:  If a work requirement does discriminate on a prohibited ground, does the Code nevertheless allow this discrimination in these circumstances?

The Code provides some defenses for an employer accused of discrimination; there are exemptions in the Code so that some types of  discrimination are permissible.  Therefore, we need to look for something in the Code that would permit the employer to insist that the employee work with women, even though his religious beliefs tell him he cannot.

Some employers, like educational or religious organizations, which primarily serve people of a certain faith, can try to bring themselves within the defense provided in Section 24(1)(a) for special service organizations.  However, that Section would not apply to a typical industrial employer (or even a large secular university like York).  Therefore, we need to look elsewhere.

In the case of indirect discrimination in employment on the basis of religion, the other possible defense appears in Section 11.  That section says that a rule that indirectly discriminates on the basis of a prohibited ground is unlawful, unless:

(1)  the requirement is reasonable and bona fide in the circumstances; and

(2) the person’s religion cannot be accommodated without undue hardship to the employer.

How do you think this section would play out in our fact scenario?  I’d think the requirement for men and women to work together would be considered reasonable and bona fide.  This case, like so many, would probably come down the issue of accommodation.  Can the employee’s request to perform his job without direct interaction with women coworkers be accommodated without causing the employer undue hardship.  Undue hardship is a high standard in the case law.

Whether the employer would suffer undue hardship if required to accommodate the employee’s request will depend on the job and the workplace.  Is it really necessary for this employee to perform his job working directly alongside women?  Can an exception be made for this one employee, so that he can just work with men, or do his job on his own.  Sometimes the answer will be yes, and sometime it will be no.  It depends on the job and the capacity of the employer to organize how tasks are performed.

But one thing is clear: the employer cannot just refuse to even consider the employee’s request.  Perhaps the employer responds to the request by saying: “We will not even entertain your request because doing so would legitimize sex discrimination against our female employees”.  If the employer does that, it would lose a human rights complaint. That would amount to preferring one prohibited ground (sex) over another (religion) on principle, rather than on the basis of an assessment of whether an accommodated compromise can be reached.  The Code deals with the potential of conflicting equality rights through the device of undue hardship:  employers must grant the accommodation, unless it would cause undue hardship.  Employers are not supposed to simply choose the equality right they like best.

The effect of the accommodation on the female employees may be relevant to assessing undue hardship, but certainly not determinative.  It may be that the female employees would not be directly affected at all if the male employee is permitted to work only with men.  It may be that the female employees really don’t care one or the other if they are assigned to work with the employee. Maybe its possible to just create an all male group, and to put the employee into that group without anyone knowing that a request for accommodation was made. In that case, it is hard to imagine how the employer would demonstrate undue hardship would result from assigning the employee to work alone or with men, don’t you think?

It may be that the women employees would not even need to learn that an accommodation was made.  For example, in the York case, I can’t understand how any other student would learn that an employee had requested accommodation.  These requests are supposed to be private. We don’t go announcing to the class when a disabled student requests accommodation, so why would we announce a student’s request for religious accommodation to anyone?

In a case called Marriage Commissioners from Saskatchewan, the Court of Appeal struck down a law that would have allowed marriage commissioners to refuse to marry same sex couples on religious grounds.  The law failed the ‘least intrusive means’ test in Section 1 of the Charter. The court said a less intrusive model would require all requests for marriage to go into a central database, and commissioners who wished not to marry gay couples due to religion could refuse to volunteer to take those files. This way the gay couples would never learn that someone had refused to marry them, which would protect them from the humiliation and insult they may feel as a result of the conflict between sexual orientation and religious rights.  So whether someone learns of an accommodation is relevant to assessing the level of hardship suffered by other groups as a consequence of accommodation.

Issues for Discussion

Do you think the hypothetical employee in my story would win a human rights complaint, assuming that it would be possible for the employer to assign him to work with only men?

In the York scenario, many commentators have argued that the employees’ accommodation request should be denied because it is insulting to women.  Do you think that argument would succeed in a human rights complaint?  Would it matter to the ‘undue hardship’ calculus that York is a large publicly funded secular institution?  Should it matter?

Do you think that the Ontario Human Rights Code strikes an appropriate balance between competing rights in a  workplace?

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11 Responses to What if a Male Employee Refuses to Work with Female Coworkers Due to His Religion?

  1. Nadine Reply

    January 11, 2014 at 12:34 am

    does York not have a procedural duty to demand from the student requesting accommodation documentation to support why he cannot work with female employees? I don’t recall reading whether this was part of the discussion with student. Under the OHC, anyone requesting accommodation is required, upon request, to provide appropriate documentation to support accommodation request?

  2. Hardeesh Singh Reply

    January 13, 2014 at 1:06 am

    Do you think the hypothetical employee in my story would win a human rights complaint, assuming that it would be possible for the employer to assign him to work with only men?

    I think that the reasoning provided by Professor Doorey is reasonable and accurate when contemplating this issue. It is clear that the only reasonable answer in this scenario is “it depends” as the circumstances of the work being done would determine if accommodation should be provided. I think that a judge deciding this issue would probably rule in favor of the employee based on the fact that it is possible for the employer to accommodate, irrespective if the actual reason is reasonable or accepted by others. It is important to maintain that religious accommodation be open, and not be constrained by imperfect analysis of religious doctrines. The courts have a clear guideline(or framework) of when discrimination can be accepted and therefore I believe any further constraints on accommodation should flow from those two principles and not the creation of new ones.

    In the York scenario, many commentators have argued that the employees’ accommodation request should be denied because it is insulting to women. Do you think that argument would succeed in a human rights complaint?

    I believe that this argument would not succeed as it suffers from an inherent flaw. While the religious requirement might be discriminatory to women, that is not the question at hand. Rather the question is whether the school could accommodate the students religious belief, which it could.
    While it may seem contentious and emotional in certain spaces, I think that in a court of law the reasoning provided by Prof. Doorey is much more accurate; “That would amount to preferring one prohibited ground (sex) over another (religion) on principle, rather than on the basis of an assessment of whether an accommodated compromise can be reached. The effect of the accommodation on the female employees may be relevant to assessing undue hardship, but certainly not determinative”

    Would it matter to the ‘undue hardship’ calculus that York is a large publicly funded secular institution? Should it matter?

    I personally think it should matter, however its important not to go overboard and always make sure the balance or judgment provided is appropriate and not punitive.

    Do you think that the Ontario Human Rights Code strikes an appropriate balance between competing rights in a workplace?

    I believe it provides the framework to do so, however there are exceptions to every law, and therefore every now and then we get the opportunity to further clarify society’s view on each topic.

  3. Ken Krupat Reply

    January 13, 2014 at 9:08 pm

    My take on this issue – for your consideration.

    http://joblaw.ca/limits-religious-accommodation-workplace/

    Best regards,

    Ken

    • Doorey Reply

      January 14, 2014 at 3:20 pm

      Thanks Ken. The Marriage Commissioners case is interesting, because the law fails the Oakes test on the minimal impairment test. It does so because there was a way to design a law that allows the employees who don’t want to marry gay couples due to religion to refuse to do so, and that also does not let the gay couple know that someone has refused to marry them. In the York situation, there was no reason to believe that anyone, including the female students in the class, would ever have learned of the accommodation request. These are usually private matters between student and professor (and maybe the accommodation office). If no one knows of the student’s request, then how are women suffering undue hardship, on an analogy to the Marriage Commissioners case. I think the hardship in the other two cases, were human rights codes at issue, would be pretty obvious and are a very different nature than what was at issue in the York case.

      Anyways, the big question for you: Could York refuse a religious request by a student to not work in a group with women, when other students are already permitted to do alternate assignments for various other reasons? I think we agree that if the student couldn’t attend the group work because of a disability, the university would have to exempt him from the assignment, because there is no undue hardship to York or the professor in allowing this. What’s the difference with the religious accommodation request? What would be the nature of the undue hardship suffered by York in granting the disability accommodation, and not the religious accommodation? Thanks, David

  4. Ken Krupat Reply

    January 15, 2014 at 12:03 am

    David: I agree with you that the particular facts of this case add a unique twist. If some students are already permitted to do alternate assignments and avoid the in-person class work, then it would seem questionable to only deny the person who refuses to attend on religious grounds. Although, Professor Greyson argues that just because you allow people an exemption for one reason (i.e. disability or geography), that does not mean you have to allow everyone an exemption.

    However, I disagree that there is no harm caused in both this case – and in a case like the Marriage Commissioners case. If one person’s requested accommodation runs counter to other people’s fundamental rights – whether the others are made aware of it or not – the institution becomes a party to discrimination in the name of protecting someone else’s freedom of religion.

    Let’s use the example from my blog. Suppose the student had said – “for religious reasons I cannot attend a class where there are Jews present.” The professor simply grants the exemption and does not tell anyone the reason for it. Is this really a reasonable or even required accommodation? I do not think so.

    While, on the one hand, the Supreme Court of Canada has confirmed that as a long as a person is sincere about a religious belief, that will get the person “in the door,” a court or tribunal still must assess whether harm will be caused, in a broad way, by allowing the request, particularly to another person’s fundamental rights such as gender equality or freedom of expression. Freedom of religion (as much as I broadly advocate it) should not be able to trump those other rights.

    For a university to go down the road of permitting students, on religious grounds, to avoid attending classes taught by people of another gender (or religion or sexual orientation) or to avoid teaching such students, or to avoid interacting with such people, would be a very dangerous road to travel.

    • Doorey Reply

      January 15, 2014 at 1:31 pm

      Thanks Ken. Your approach would require the Tribunal to recognize a form of ‘conceptual undue hardship’ based not in actual hardship caused by the accommodation, but on the basis that religious freedoms should never be permitted to trump other freedoms. That may be the law we would like, but I don’t see that approach in Tribunal’s case law. The compromise the Code takes, in my view, is different. It says that when two rights clash, the solution is to use the device of actual undue hardship arising from the accommodations request to break the tie. Anyways, it sure is an interesting issue. Cheers,

      • Ell Reply

        January 22, 2014 at 5:15 pm

        I’m not sure that it is accurate to say that what you characterize as “conceptual undue hardship” means that religious freedoms should never trump other freedoms – it may mean that requests of this particular nature, that are, essentially, requests to be isolated from people based on HRC grounded characteristic will generally or often amount to undue hardship, but a great many religious accommodations – the vast majority, in fact – do not involve these kinds of requests. Religious accommodation requests mostly seem to deal with days off and break times – not being isolated from other employees.

        In the workplace the SCC has presented “morale” of other employees as a potential cost the employer can consider in assessing undue hardship – I get that this is not a well used criterion as arbitrators and courts are (rightfully) reluctant allow any sense that accommodations are subject to a popularity contest, but I would suggest that this is the exact situation that they may have contemplated. Assessing the (metaphorical) violence this kind of accommodation performs on the equality and dignity of female students is relevant. Limiting undue hardship to a consideration of the mere mechanics of scheduling runs entirely counter to the intention of the human rights code, which is the recognize the dignity and worth of every person so that each person feels a part of the community – that surely has to include the female students at York University. The Human Rights Code is intended facilitate interaction, not exclusion and isolation.

        Finally I would also point out – this discussion would have no traction if it were about anything other than men and women. If this gentleman has a sincere religious belief that prevented him from working with homosexuals or say, people of another faith (jewish people or muslim people), I suspect it would be eminently and immediately clear that the poisonousness of the atmosphere that could create would clearly amount to undue hardship; but because we are talking about a man who doesn’t want to work with women, we all give it a whole lot of time. And suggesting that secrecy is the answer is facile – while clearly accommodations don’t have to pass a popularity test, simply hiding bigotry from people cannot be said to have addressed the bigotry. This is suggesting, with respect, that York should have some kind of black market in sexism where so long as the women don’t find out, it is all okay.

        • Doorey Reply

          January 22, 2014 at 6:05 pm

          Thanks Ell. Well said. Of course, we already have cases where religious accommodation has permitted discrimination on the basis of sexual orientation, so it is not obvious at all that religious views that are intolerant of homosexuality will always fail a human rights code analysis. The law requires a balancing of interests by requiring an assessment of actual undue hardship. On the ‘secrecy’ point, we need to remember that requests for accommodation, at York and anywhere, are not intended to be public debates. It would never occur to me to broadcast a disabled student’s private request to be accommodated to the entire class to seek their views on the request. So too with religious requests. Most professors deal with these request in private and with sensitivity. I don’t have to agree with the request, but quite frankly, in the law, it’s none of the other students’ concern unless the request will have a direct impact on those students such that the need to be involved in the accommodation. That’s why the law you cite, about other employees’ interests, requires that their concerns be real and substantial and not based on intolerance or inconvenience. The question is what actual harm will those other people suffer if the accommodation request is granted.

          In the York case, the university received a legal opinion that refusing to grant an accommodation (of allowing the student to do the alternative assignment already offered to other students for other reasons) would violate the Code, and it followed that legal advice in order to avoid possible legal liability. I presume at the point the university was receiving this legal advice, not a single other student (female or otherwise) knew about the request. Only after the legal opinion was issued did someone decide to turn this request into a media circus. The legal question Section 11 of the Code asks is what ‘undue hardship’ would be incurred if the student were permitted to the do the alternate assignment, considering the very unique facts of this particular case: (1) that other students had already been granted accommodation for other reasons; (2) it was a distance course in the first place, which is supposed to allow for students to not come to campus; and (3) no one but the professor, the student, and the university administration and their lawyers knew about the request. If you are saying that the undue hardship would be to the female students in the class who were not even aware that a request to accommodate had been made, then I just can’t see the Tribunal finding that, based on how stringently the undue hardship standard is applied in the case law. Can you? That’s the legal opinion I suspect the University received, and it is consistent with Tribunal case law. Whether others are aware of a request for accommodation does matter in the case law, even if you think that’s ‘facile’. It’s relevant in Charter equality law too. read the Saskatchewan Marriage Commissioners case, where the Court favoured a legal model that permitted commissioners to refuse to marry gay and lesbian couples based on a religious objection in which the couple never learns that the Commissioner has rejected the file. Since the couple doesn’t learn of the rejection, said the Court of Appeal, the stigma they suffer is less harmful than if they are personally confronted by a commissioner who says he won’t marry them because of his religious beliefs. The court is engaging in the difficult and delicate effort to strike a balance between the competing rights.

          If that is a dumb result, then perhaps we should re-write the law. The Code could simply say, in the case of a religious accommodation that conflicts with any other equality right, the accommodation amounts to undue hardship. Would that be a better law than the current one, which requires a balancing of interests?

          • Ell

            January 22, 2014 at 8:11 pm

            Well, not really what I said – the issue is not whether religious freedom should ALWAYS give way, in every circumstance, so I don’t think rewriting the law is necessary, and indeed I would not embrace the revision you suggest. This is a very particular circumstance and I am, in fact, evaluating it on its individual facts, the nature of the institution – I am conceding the prima facie case for this conversation, although I have some doubts about it, honestly, and I also have doubts that complete isolation is the only accommodation that could address this particular need, and dealing only with the issue of undue hardship.

            I agree that the “morale” issue should not be based on intolerance – that makes this issue a little sticky; I think one might be hard pressed to characterize the request itself as based on anything but intolerance (albeit of a religious nature); so we are locked in that argument: “doesn’t refusing to tolerate intolerance kind of make you intolerant?” and I sort of think there is an answer and that it’s “no”. So I don’t think and I am not convinced a tribunal would view the objections/feelings of the female students as based on ignorance or intolerance – and note I am not saying here that the fact that the request is based on intolerance means that it is exempt from the legal analysis or from accommodation, but only that the objections to it and the general “morale” could not easily be characterized as ignorant, frivolous or based on intolerance themselves.

            I agree is the stigma is less than if someone had asked to walk into the room to make announcement about the status of women – I’m not sure I agree it is non-existent or irrelevant. I don’t think students need to know about specific accommodations regarding specific students to have a legitimate injury to their dignity; they would only have to know in the general sense that it could happen; and I am not as convinced as you are that a tribunal would disagree, particularly in a university environment.

            I kind of think the issue of other accommodations is a non-starter. I’m not suggesting that it would constitute “undue hardship” in a mechanical, scheduling kind of way and readily concede it likely would not (if the same student were asking for the same accommodation because he was clinically agoraphobic, I think he should probably get it). The hardship I’m talking about is in the damage to the atmosphere of equality and tolerance that York is (in theory) fostering; that simply doesn’t come up if someone can’t make it because they are doing a semester in China or have a broken leg – neither of those damages that atmosphere so I am not sure I see the relevance to the analysis, and that is actually the argument I would feel most confident about.

            I think a situation that would be more analogous to the marriage commissioners case would be if the individual was attempting to trade shifts or classes to minimize exposure to women rather than requesting to be excused from all contact. So I kind of think the easy answer is “if it is mechanically possible, you have to do it”, but I also think it is an exceptionally limited view of “hardship” in this context, and yes, I absolutely think that a tribunal could agree with that.

          • Doorey

            January 22, 2014 at 8:42 pm

            Thanks again Ell, we can agree to disagree. This would make a great law moot. Maybe I will develop one.

  5. Tomee Sojourner, M.A. Reply

    January 15, 2014 at 5:14 pm

    Thanks for the article and the insightful comments.

    The points raised in your article and in the York University religious accommodation case lead me to reflect on the growing number of competiting interest cases that are emerging in the areas of employment law and human rights. It is interesting to think about the request of a male student asking not to do group work with women based on his religious beliefs and the uproar that it has created. Yet in so many work sites, this scenario plays out when white workers refuse to work with racialized workers, or heterosexual workers refuse to work with LGBT workers for ‘personal/cultural’ reasons. I question how the human rights tribunals and other decision-makers have handled (or in some cases mishandled) these cases and the issue of competiting interests.

    As a Management Consultant and an Academic, I raise the issue of competiting interests and the need for nuanced approaches to rights-based discourse in employment and labour relations due to changing demographics and social changes within workplaces. I have also raised these points when working with academic institutions.

    I would argue that scenario in the article and the York University case require critical and in-depth analysis, not only from a legal perspective but also from a socio-cultural perspective. One interesting tool that I apply to complex competiting interest cases is an intersectional diversity approach.

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