Employer Must Take Reasonable Steps to Accommodate Employee

Ontario (Human Rights Comm.) and O’Malley v. Simpsons-Sears Ltd. (1985), 7 C.H.R.R. D/3102 (S.C.C.)

The Supreme Court of Canada allows an appeal by the Ontario Human Rights Commission and Theresa O'Malley from the Ontario Court of Appeal ruling which found that O'Malley was not discriminated against because of her religion when her full-time employment was terminated because she refused to work Friday evenings and Saturdays. O'Malley’s religion (Seventh-Day Adventist) required strict observance of the Sabbath from sundown Friday to sundown Saturday.

The Supreme Court of Canada, in a unanimous judgment, finds that O'Malley was discriminated against because of creed.

The Court finds that it is not necessary to prove that discrimination was intentional to find that a violation of human rights legislation has occurred. An employment rule, neutral on its face and honestly made, can have discriminatory effects. It is the result or the effect of an act which is important in determining whether discrimination has occurred.

Where an employment rule has a discriminatory effect, the Court finds that an employer has a duty to take reasonable steps to accommodate the employee, unless accommodation creates an undue hardship for the employer. In O'Malley’s case the employment rule that all employees must work Friday evenings and Saturdays on a rotation basis had a discriminatory effect because of her religion. The employer did not show that accommodating O'Malley would have created an undue hardship.

The Court finds that the onus of proving that accommodation will result in undue hardship is on the employer since the information is in the employer’s possession and the employee is not likely to be able to prove that there is no undue hardship.

The appeal is allowed. Simpsons-Sears Limited is ordered to pay O'Malley compensation for wages lost due to discrimination.

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