Employers Must Accommodate Employees Affected by Adverse Effect Discrimination
Central Alberta Dairy Pool v. Alberta (Human Rights Comm.) (1990), 12 C.H.R.R. D/417 (S.C.C.)
The Supreme Court of Canada rules that Central Alberta Dairy Pool discriminated against Jim Christie by failing to accommodate his need to be absent from work on April 4, 1983 (Easter Monday) in order to respect his faith in the tenets of the World Wide Church of God.
Mr. Christie was an employee of the Dairy Pool who became a prospective member of the World Wide Church of God in 1983. The Church recognizes a Saturday sabbath and ten other holy days throughout the year. Members of the Church are expected not to work on these days. Mr. Christie asked his employer for permission to take unpaid leave on Tuesday, March 29 and on Monday, April 4, 1983, because both of these days were holy days in his Church. He was granted leave for the Tuesday but denied leave for the Monday because Mondays were especially busy days at the Dairy Pool. Milk that arrives at the Dairy Pool on weekends must be processed promptly on Mondays to prevent spoilage. When Jim Christie was absent on Monday, April 4, without permission, his employment was terminated.
The Board of Inquiry ruled that Christie was discriminated against because his religious faith had not been accommodated. However, this decision was overturned by the Alberta Court of Queen's Bench and the Alberta Court of Appeal. These courts, relying on the Supreme Court of Canada's decision in Canadian National Railway Co. v. Canada (Human Rights Comm.) and Bhinder, decided that regular attendance at work was a bona fide occupational requirement and, consequently, that the employer had no duty to accommodate Mr. Christie.
In the majority decision of the Court, written by Wilson J., the Court repudiates its decision in Bhinder in part. It finds that the defence of bona fide occupational requirement must be approached differently depending on whether the discrimination occurs directly or through adverse effect.
In the case of direct discrimination, the majority of the Court upholds Bhinder. It finds that where an employment rule discriminates directly, as, for example, in the case of firefighters who are required to retire at age 60, and where the rule is found to be a bona fide occupational requirement, there is no duty on the employer to accommodate. However, where an employment rule that is a bona fide requirement has an adverse effect on an individual because of his religion or some other ground, then the employer has a duty to accommodate that individual to the point of undue hardship.
The majority finds that Christie was discriminated against because of his religion and that the employer failed to accommodate him.
In a minority judgment authored by Sopinka J., three members of the Court agree with this disposition but provide different reasons for their finding.
The minority of the Court reasons that the duty to accommodate must be read into the defence of bona fide occupational requirement whether the bona fide occupational requirement discriminates directly or through adverse effect. To use the bona fide occupational requirement defence successfully, an employer must show that there was no reasonable alternative to the impugned rule which would not cause undue hardship to the employer. If an employer fails to provide an explanation as to why individual accommodation cannot be accomplished without undue hardship, this will ordinarily result in a finding that the duty to accommodate has not been discharged, and therefore that the bona fide occupational requirement has not been established.
The appeal is allowed by all members of the Court and the decision of the original Board of Inquiry is restored.
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