Employers Must Accommodate All Religious Beliefs

By Pushor Mitchell LLP
Categories: Blog, Employment Law

By now it is a well-known element of employee relations that employers must accommodate employees’ religious beliefs. Few employers, however, are likely to have realized the scope of beliefs which attract this obligation.

As in all enumerated grounds set out in human rights legislation, the duty to accommodate religious beliefs requires positive steps on the employer’s part. While the employee must facilitate those efforts, the primary onus falls on the employer.

A recent arbitration decision in Ontario is indicative of the challenges employers can face in dealing with employees’ religious beliefs and affiliations. The arbitration was the result of a grievance arising from the termination of several employees.

The employees were terminated for refusing to submit to a biometric hand scan. The hand scan was required as part of the employer’s implementation of a new security system.

The employees’ refusal was based on their belief that, in submitting to the biometric hand scan, they might acquire the “Mark of the Beast” and they would thus risk damnation. Although open to several interpretations, the basis for the employees’ beliefs is apparently to be found in the New Testament of the Bible, in the Book of Revelation of St. John the Divine.

The employees are members of Pentecostal churches. The arbitrator pointed out that there is no precept of this church which prohibits a member from submitting to biometric scanning. The churches’ position is that it is a matter of individual conscience.

Biometrics involves using a part of the body, such as the hand, for identification purposes. In this instance, the scanner uses a camera to take an image of the hand from different angles and, based on 91 different measurements of the hand, generates a 9 digit identifying number.

No image of the hand is stored in the system and it does not record surface details such as fingerprints. It simply measures the size of the hand and utilizes an algorithm to create a 9 digit identifying number.

That number is saved in the system and (each time the individual attempts to access the premises) the hand is re-scanned and the resulting number is compared to the one saved in the system. If the number matches, the individual gains entry.

The biometric scanning system does not mark or imprint anything on the individual’s hand and does not take any kind of photograph or x-ray. It can work even if the individual is wearing a tight-fitting glove (such as a latex surgical glove).

The employer implemented the system as a result of security concerns and a desire to have better control over who may access its building. The company also had an interest in preventing time fraud by employees (as a result, for instance, of one employee swiping another’s pass card).

After the employer implemented the system, certain of the employees refused to submit to the hand scan, citing their concerns about being imprinted with the “Mark of the Beast”. The employer warned these employees and then imposed progressively more serious disciplinary measures.

Although the employer suggested some alternatives, such as the employees using their left hand for the scan or wearing a latex glove, the employees were adamant. Ultimately, their employment was terminated due to their refusal to cooperate.

Through their union, the employees grieved on the ground that the termination discriminated against them and their religious beliefs. The arbitrator upheld the grievances, reinstating the employees to their employment with full back pay. He concluded that their employer had failed to accommodate them to the point of undue hardship.

The arbitrator utilized the Supreme Court of Canada’s definition of religion (from its decision, Syndicat Northcrest v. Amselem) being “freely and deeply held personal convictions or beliefs connected to an individual’s spiritual faith and integrally linked to one’s self-definition and spiritual fulfillment, the practices of which allow individuals to foster a connection with the divine or with the subject or object of that spiritual faith”.

The arbitrator noted that the only essential ingredient of a claim to protection from religious discrimination is that the beliefs be sincerely held. The individual need not demonstrate a reasonable basis for those beliefs. In the Supreme Court of Canada’s Amselem decision, the Court rejected the proposition that an individual should have to prove the objective validity of religious beliefs.

The logical result of this approach is that the beliefs need not flow directly from any documented religious text. They also don’t need to be recognized by any particular religious body. They simply need to be sincerely held and they need to feature some connection with religion.

As a result, employers should be careful to take into account the sincerely-held religious beliefs of their employees, even if those beliefs may be unfamiliar or may seem illogical. A failure to do so will result in the employer’s actions being marked as a discriminatory breach of human rights law.