In its recent decision, H.T. v. ES Holdings Inc. o/a Country Herbs, the Human Rights Tribunal of Ontario (Tribunal) awarded two teenage employees over C$26,000 after they were fired for observing a religious holiday.
Siblings 16-year-old H.T. and 14-year-old J.T. began working for ES Holdings Inc. o/a Country Herbs (Country Herbs) in April 2014. H.T. was responsible for packaging herbs, while J.T. made boxes into which herbs were placed for shipping.
Shortly after joining Country Herbs, H.T. learned that she was scheduled to work on a Mennonite holiday, which fell on a Thursday. As a devout Mennonite, H.T. was required to attend church on the holiday, so she promptly informed Country Herbs that she would not be able to work that day.
In response, Country Herbs told H.T. that she must either work on the holiday or else she must make up lost time at midnight. H.T. refused to accept either option as she felt that both choices were unreasonable. Working on the holiday was not an option because of her religious beliefs and working at midnight was not a realistic alternative as she felt the workplace was not safe at night and, in any event, she could not find transportation at that hour.
Despite the fact that H.T. informed Country Herbs of her intentions, Country Herbs called her house on the day of the holiday to inquire if she was coming to work. When her mother responded that she would neither be at work that day nor make up time at midnight, Country Herbs stated that she need not return to work at all. Country Herbs stated that this also applied to J.T. even though he was not scheduled to work that day.
H.T. and J.T. commenced a human rights application against Country Herbs alleging discrimination on the basis of creed and association as well as reprisal contrary to the Ontario Human Rights Code (Code).
Country Herbs argued that it fired H.T. in accordance with its attendance policy, which prohibits employees from taking time off on a Thursday due to business demands. Country Herbs insisted that, in order to be fair to its other Mennonite employees who observe the holiday, it could not make an exception for H.T. In fact, 11 other Mennonite employees had requested the holiday off. Six took the holiday off and made up lost time at midnight and the others agreed to work on the holiday. Only H.T. refused to accept either option.
The Tribunal accepted that Country Herbs adopted the policy in an honest and good faith belief that it was necessary given the nature of the business and the demands of its customers. Nevertheless, while the policy appeared to be reasonable, this did not negate Country Herbs’ duty to accommodate H.T.’s religious beliefs. Specifically, Country Herbs should have considered alternative arrangements and engaged in meaningful discussions with H.T. about what steps could be taken to accommodate her religious needs. Country Herbs failed to do so. The only alternative offered was for H.T. to work at midnight, which was unreasonable given her young age and the fact that she had no means of transportation to get to work at midnight.
Ultimately, the Tribunal found that “the expectation that H.T. would work on the holiday in accordance with the attendance policy or be fired was discriminatory on the basis of her creed”.
With respect to J.T., the Tribunal noted that, although he was not scheduled to work on the holiday, he was fired because of his association with his sister who had asserted her right to observe a religious holiday. Accordingly, the Tribunal held that Country Herbs discriminated against J.T. on the basis of association contrary to the Code.
The Tribunal awarded C$10,000 to H.T. and C$7,500 to J.T. for injury to dignity, feelings and self-respect. The Tribunal also awarded them a combined sum of C$8,617 for lost wages between the date of termination from Country Herbs and the time they found new employment.
In addition to monetary remedies, the Tribunal ordered Country Herbs to prepare an internal human rights policy and post Code cards to promote future compliance. The Tribunal also ordered Country Herbs’ president and vice president to undergo human rights training.
The Tribunal’s decision is an important reminder that employers must be prepared to accommodate employees to the point of undue hardship, even in the face of a core company policy. The fact that a company policy seems reasonable is not enough. The discretion in implementing such policy must also be exercised in a manner that is not discriminatory. Where the enforcement of such policy has the potential to breach the Code, employers must explore reasonable accommodation strategies and options and implement appropriate accommodation measures short of undue hardship.