This time of year we find ourselves answering questions about what type of workplace celebrations are appropriate. Is wishing colleagues “Merry Christmas” a neutral greeting or is it offensive? Is it acceptable to have a Christmas tree in the office? Is Secret Santa a human rights problem?
The reality is that not everyone celebrates Christmas. In fact, in places like Toronto, there are many workplaces in which the majority of employees do not celebrate Christmas. So how do employers strike the right balance between celebratory and seasonal and respectful and appropriate? We found three cases that are helpful.
Jones v. Eisler (2001) BCHRT, involved a merchandiser who was employed by Shoppers’ Drug Mart in Victoria, British Columbia. He was a devout Jehovah’s Witness and, as a result did not participate in Christmas celebrations or decorate his home. While Mr. Jones agreed to handle Christmas merchandise as part of his job duties, he refused to assist in the decorating of the store because it offended his Christian conscience. This had been the arrangement he had had with his employer for many years.
Nevertheless, in November 1998, Mr. Jones was asked by his supervisor to put out a half dozen artificial poinsettias. When he refused to do so based on the fact that it was contrary to his religion, the supervisor complained to the store’s owner, and he was subsequently terminated.
The Tribunal found that Mr. Jones had made out a prima facie case of discrimination on the ground of religion, and held that the employer could have accommodated Mr. Jones’s religious beliefs without undue hardship by not having him decorate the store. Mr. Jones was awarded $21,243 in compensation for lost wages and $3,500 for the injury to his dignity, feelings, and self-respect.
In Henry v. Kuntz (2004) OHRT, an employee of a bakery shop, who was a follower of the Rastafarian faith refused to make and decorate gingerbread houses on the basis that the activity was a pagan ritual contrary to his religious beliefs. He similarly did not wish to attend the Christmas party.
When the employer insisted and ultimately dismissed the employee for his refusal, the employee brought ahuman rights claim against the employer.
In this case however, the employer was successful in defeating the human rights complaint because the employee had not communicated his reasons for refusing to make the gingerbread houses or participate in Christmas to the employer, and therefore had not triggered the employer’s duty to accommodate.
In Ontario (Ministry of Community and Social Services) and O.P.S.E.U. (Barillari) (2008) ON GSB the employee, a Christian, sought to hand out to her co-workers Christmas gifts which included scripture readings. When some of her co-workers indicated that this was offensive to them, Ms. Barillari was asked to hand out the gifts without the scripture. She refused to do so and was disciplined as a result.
The union grieved the discipline, stating that the employer had directly discriminated against Ms. Barillari by denying her the right to hand out Christmas gifts at work. The employer responded that it disciplined Ms. Barillari for preaching contrary to a policy of neutrality jointly endorsed by the union and the employer. The employer also argued that it did not expressly forbid Ms. Barillari from handing out Christmas gifts to co-workers. Rather it directed Ms. Barillari to refrain from handing out gifts with scripture attached.
The arbitrator agreed with the employer, finding that the prohibition against handing out gifts of a religious nature did not constitute discrimination on the basis of religion or creed. While the opportunity to hand out religious gifts was important to Ms. Barillari, there was no evidence that gift giving formed part of her religious belief. The grievance was therefore dismissed.
Clearly, the moral of the story of these cases is that employers and employees must respect the diversity within their workplaces. Employers should make efforts to be as inclusive as possible. To do so, our advice is to use more generic holiday and seasonal symbols and themes.
It is important to remember that overtly religious Christmas festivities may contravene the equality rights of members of other faiths and people who do not ascribe to a particular faith. If an objection to a Christmas or holiday-related activity is made, employers should consider accommodating the employee.