Additional paid days off not necessary to accommodate religious holidays, tribunal says

Policy offering schedule changes to accommodate employee’s need for time off meets duty to accommodate, says human rights tribunal
|employmentlawtoday.com

An Ontario company’s policy on accommodating religious observances that doesn’t allow paid days off is not discriminatory, the Ontario Human Rights Tribunal has ruled.

Savo Markovic, a worker for Guelph, Ont.-based auto parts maker Autocom Manufacturing, was an Eastern Orthodox Christian who celebrated Christmas two weeks later than the regular Western Christian Christmas. In 2004, he took Jan. 7 off to celebrate the holiday but did not receive a paid day off. He filed a complaint alleging Autocom discriminated against him on the basis of his creed, since Western Christians got Dec. 25 off with pay to celebrate their Christmas.

New policy developed for religious holidays

After Markovic filed the complaint, Autocom developed a policy to accommodate religious observances. The policy offered a menu of options for employees who wanted to take time off to observe a holiday that wasn’t a statutory holiday under the Employment Standards Act. Employees could make up the time at a later date, work on another holiday when the workplace was operating, arrange to switch shifts with another employee, adjust the shift schedule, use paid vacation days, or take an unpaid leave of absence.

Markovic and the Ontario Human Rights Commission maintained this policy was discriminatory because it didn’t provide the option of two paid days off to match the Good Friday and Christmas holidays Western Christian employees received. The Commission also argued requiring employees to make up time placed an unfair burden on them that wasn’t equal treatment.

Extra paid days off not necessary for accommodation

The tribunal agreed Markovic’s need to observe Eastern Orthodox Christmas should be accommodated, but disagreed Autocom’s policy was discriminatory. The tribunal said though Christmas and Good Friday originated as Western Christian holidays, they have been incorporated into employment standards legislation as secular holidays and all workers, regardless of religion, get them off. To give Markovic two paid holidays for the Eastern Orthodox versions of those days would give him two extra days other employees didn’t get.

The tribunal said while employers have a duty to accommodate religious holidays, they don’t have to alter the nature of the employment contract, which requires employees to provide their services in exchange for payment. It said various decisions by courts and tribunals support the concept of offering several options for employees to get time off for religious holidays, including scheduling changes, as a way to accommodate. As long as they don’t result in a loss of pay or extra paid days off, this wouldn’t violate the employment contract.

Providing a menu of options for employees to consider and negotiate doesn’t place an unfair burden on them either, the tribunal found.

“It is in the very nature of the accommodation process that there is dialogue between employers and employees,” the tribunal said. “There is nothing nefarious about this, and the process envisioned by a menu of options approach is no more burdensome than any other process by which an employee is seeking accommodation of differences.”

The tribunal denied Markovic’s claim and found Autocom’s policy and the options presented in it to accommodate employees observing different religious holidays met the duty to accommodate and did not discriminate under the

Human Rights Code.

For more information see:

Markovic v. Autocom Manufacturing Ltd.

, 2008 HRTO 64 (Ont. H.R.T.).

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