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.
I 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?